10.20.11

Leahy Marks 25th Anniversary Of ECPA, Announces Plan To Mark Up Reform Bill

WASHINGTON (Thursday, Oct. 20, 2011) – As the Electronic Communications Privacy Act approaches the 25th anniversary of its enactment, the law’s lead Senate author, Senator Patrick Leahy (D-Vt.), announced Thursday that he plans to schedule Judiciary Committee consideration of legislation to make needed updates to the privacy law before the end of the year.  Leahy chairs the Senate Judiciary Committee.

“When I led the effort to write the ECPA 25 years ago, no one could have contemplated the many emerging threats to our digital privacy,” said Leahy.  “But, today, this law is significantly outdated and out-paced by rapid changes in technology and the changing mission of our law enforcement agencies after September 11.   At a time in our history when American consumers and businesses face threats to privacy like no time before, we must renew the commitment to the privacy principles that gave birth to the ECPA a quarter century ago.”

Leahy introduced the Electronic Communications Privacy Act (ECPA) Amendments Act in May.  The legislation will make commonsense changes to existing law to improve privacy protections for consumers’ electronic communications, and clarifies the legal standards for the government to obtain this information.  Since introducing the bill, Leahy has been working with the law enforcement community, the Obama administration and Senators on both sides of the aisle in advance of Committee consideration of the bill.

“Before the end of the calendar year, the Judiciary Committee will consider legislation that I have drafted to update the ECPA and to bring this law fully into the digital age.  I hope that all Members will join me in commemorating this important milestone anniversary and in supporting the effort in Congress to update this law to reflect the realities of the digital age. 

Leahy has chaired hearings in recent years on the need to update ECPA.  Leahy was the lead Senate author of  ECPA, which was enacted in 1986.  The 25th anniversary of the signing of the privacy law is October 21.  While portions of the Electronic Communications Privacy Act have been amended, Congress has not enacted comprehensive reforms to this law since the measure was first signed into law.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Committee On The Judiciary,

On the 25th Anniversary of the Enactment

Of The Electronic Communications Privacy Act

October 20, 2011

 

On October 21, we will celebrate the 25th anniversary of the enactment of the Electronic Communications Privacy Act (ECPA) -- one of the Nation’s premiere privacy laws for the digital age.  Since the ECPA was first enacted in 1986, this law has provided privacy protections for email and other electronic communications for millions of Americans who communicate and transact business in cyberspace. 


Today, the many rapid advances in technology that we have witnessed make this key privacy law more important than ever if we are to ensure the right to privacy.  Just in the past few months, we have witnessed significant data breaches involving Sony and Epsilon that impact the privacy of millions of American consumers.  We are also learning that smartphones and other new mobile technologies may be using and storing our location and other sensitive information, posing new risks to privacy. 

When I led the effort to write the ECPA 25 years ago, no one could have contemplated these and other emerging threats to our digital privacy.  But, today, this law is significantly outdated and out-paced by rapid changes in technology and the changing mission of our law enforcement agencies after September 11.   At a time in our history when American consumers and businesses face threats to privacy like no time before, we must renew the commitment to the privacy principles that gave birth to the ECPA a quarter century ago.  That is why I am working to update this law to reflect the realities of our time. 

 

Before the end of the calendar year, the Judiciary Committee will consider legislation that I have drafted to update the ECPA and to bring this law fully into the digital age.  My bill makes several common sense changes to the law regarding the privacy protections afforded to consumers’ electronic communications.  Among other things, my bill gets rid of the so-called “180-day rule” and replaces this confusing mosaic with one clear legal standard for protection of the content of emails and other electronic communications.  This bill also provides enhanced privacy protections for American consumers by expressly prohibiting service providers from disclosing customer content and requiring that the Government obtain a search warrant based on probable cause to compel the disclose the content of an individual’s electronic communications.


The ECPA Amendments Act also gives important new privacy protections for location information that is collected, used, or stored by service providers, smartphones, or other mobile technologies.  To address the role of new technologies in the changing mission of law enforcement, my bill also provides important new tools to law enforcement to fight crime and protect cybersecurity including -- clarifying the authority for the Government to temporarily delay notice to protect the integrity of a law enforcement investigation and allowing a service provider to disclose content that is pertinent to addressing a cyberattack to the Government to enhance cybersecurity. 

I drafted this bill with one key principle in mind -- updates to the Electronic Communication Privacy Act must carefully balance the interests and needs of consumers, law enforcement, and our Nation’s thriving technology sector.  I also drafted this bill after careful consultation with many Government and private sector stakeholders, including the Departments of Justice, Commerce and State, local law enforcement, and members of the technology and privacy communities. 

As the ECPA approaches its silver anniversary, I join the many privacy advocates, technology leaders, legal scholars and other stakeholders who support reform of the ECPA in celebrating all that this law has come to symbolize about the importance of protecting Americans’ privacy rights in cyberspace.  I hope that all Members will join me in commemorating this important milestone anniversary and in supporting the effort in Congress to update this law to reflect the realities of the digital age. 

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