Today, Access is joining a day of action in the United State calling for reform of the U.S. Electronic Communications Privacy Act (ECPA) — the law known for giving the U.S. government the ability to access your email and documents in the cloud without a warrant. ECPA is one of the internet’s most outdated laws: it was passed in 1986, before most people even had access to the internet.
After years of efforts by committed reformists, legislation to update and reform ECPA has gained significant support in the U.S. Congress. However, certain U.S. administrative agencies, such as the Securities and Exchange Commission, have mounted an aggressive campaign to retain their ability to obtain personal records without a warrant. We need the White House to stand firm: due process is a fundamental right, and not subject to violation by special interests.
What is ECPA?
ECPA is a legislative dinosaur. When it passed Congress in 1986, most people didn’t have home computers, and today’s most popular cloud services didn’t exist. ECPA assumes that content left on a third-party provider’s servers for more than 180 days (6 months) has been abandoned, and thus doesn’t require government agencies to obtain a warrant in order to gain access.
In practice, this means that hundreds of U.S. government agencies—like the IRS, FBI, SEC, and DEA, as well as state and local law enforcement agencies—can access many of our stored emails, private social media messages, and documents in the cloud without getting a warrant from a judge.
ECPA provisions fly directly in the face of the right to privacy and the principles of due process, user notification, and safeguards against illegitimate access, as laid out in the Necessary and Proportionate Principles on the application of human rights in the age of digital communications surveillance. By allowing access to digital communications without a warrant, ECPA contravenes the U.S. Constitution’s Fourth Amendment prohibition against unreasonable searches and seizures, as well as various protections enumerated in the International Covenant on Civil and Political Rights, also ratified by the United States.
What are the obstacles to reform?
Bills to reform ECPA have gained major support in recent months from both parties in the U.S. Congress. Even officials at the U.S. Department of Justice have declared before the U.S. Congress that ECPA’s provisions “may have made sense in the past [but that] they have failed to keep up with the development of technology,” and that “there is no principled basis to treat e-mail less than 180 days old differently than e-mail more than 180 days old.”
However, these efforts for principled reform are being blocked by a power grab from the U.S. Securities and Exchange Commission (SEC), the agency that regulates the U.S. financial markets. The SEC is pushing for a special ‘carve-out’ for regulatory agencies that would enable them to continue to access your documents without a warrant — even though their colleagues at the Justice Department have indicated this is an unnecessary allowance.
The SEC carve-out would functionally neuter ECPA reform.
That’s why Access, along with dozens of other civil and digital rights groups, are calling on the Obama administration to stand up for ECPA reform. We need the White House to stand behind the right to due process, and make clear that no government agency should be above the law.
What can you do?
Our friends in the Vanishing Rights coalition have organized a White House petition calling on the Obama administration to stand beside hundreds of tech companies, startups, and advocates in demanding real reform.
The petition needs 100,000 signatures before December 12th in order to trigger a formal response from the White House. Add your name to support this commonsense, and long overdue, restoration of our rights to privacy and due process.
You can also join the movement by posting on your own to Facebook, Twitter, and other social media sites using the hashtags #ECPA and #getawarrant and get your friends to sign the petition.
- American Association of Law Libraries
- Americans for Tax Reform
- American Library Association
- Application Developers Alliance
- Association for Competitive Technology
- Association of Research Libraries
- Bill of Rights Defense Committee
- Business Software Alliance
- Center for Democracy & Technology
- Center for Financial Privacy and Human Rights
- Center for Media Justice
- Cheezburger Network
- Competitive Enterprise Institute
- Computer & Communications Industry Association
- Demand Progress
- Electronic Frontier Foundation
- Engine Advocacy
- Fight for the Future
- Free Press Action Fund
- Generation Opportunity
- The Internet Association
- Information Technology Industry Council
- Internet Infrastructure Coalition
- National Association of Criminal Defense Lawyers
- NY Tech Meetup
- Open Technology Institute
- PEN American Center
- Privacy Rights Clearinghouse
- Public Knowledge
- R Street
- Software & Information Industry Association