Reform of ECPA Balances Privacy With Law Enforcement Needs

Sen. Orrin Hatch, chief sponsor of bill to reform ECPA
Sen. Orrin Hatch, chief sponsor of bill to reform ECPA

As a result of change in technology, the Electronic Communications Privacy Act (ECPA) has come in need of being modernized. Three federal legislators, Sens. Orrin Hatch (R-UT), Chris Coons (D-DE) and Dean Heller (R-NV), also working with House Speaker Paul Ryan (R-WI), Senate Majority Leader Mitch McConnell (R-KY) as well as Sens. Chuck Grassley (R-IA) and Patrick Leahy (D-VT), the Chairman and Ranking Member of the Senate Judiciary Committee respectively, have introduced the International Communications Privacy Act (ICPA). This legislation will update ECPA to address privacy and law enforcement issues in a world where technology has marched forward beyond current law.

The key to the reform is balancing the need for strengthened consumer privacy in electronic communications while also recognizing and facilitating the need for law enforcement to access data, via the requirements of a warrant process, when needed. ICPA accomplishes both of these concerns, neither of which are addressed by the current law.

It is past time for Congress to modernize the outdated Electronic Communications Privacy Act. As we do so, lawmakers must not ignore the pressing issue of international data privacy and the need for Congress to establish a legal framework for accessing extraterritorial communications,” Sen. Hatch stated, “The global reach of government warrant authority has significant implications for multinational businesses and their customers. The International Communications Privacy Act aids law enforcement while safeguarding consumer privacy, striking a much-needed balance in today’s data-driven economy.”

The Mutual Legal Assistance Treaty (MLAT) process will be reformed by providing great accessibility, transparency, and accountability. ICPA will also require the Attorney General to create an online docketing system for MLAT requests while also publishing new statistics on the number of those requests. The legislation also establishes a sense of Congress that data providers should not be subject to data localization requirements, which are entirely incompatible with the every growing borderless nature of the Internet. Such requirements are also an impediment to online innovation, and are also unnecessary to meet the needs of law enforcement.

The world is becoming more dependent on broadband internet by the minute. As this technological necessity continues to expand its role in our society, it is imperative the guaranteed rights of law-abiding citizens are balanced against the ability for law enforcement to do its job,” Sen. Heller stated, “I’m proud to join Senators Hatch and Coons to achieve this goal.”

The ICPA legislation creates a clear legal framework for authorizing law enforcement to obtain electronic communications of U.S. persons regardless of the location of those communications. This will also allow law enforcement to access electronic communications of foreign nationals when needed.

“In an increasingly globalized world, protecting data stored abroad is critical to our country’s ability to compete in the global economy. Just like law enforcement agencies should be required to get a warrant before accessing the content of Americans’ communications within our borders, processes for accessing content located abroad should also comply with the law. This common-sense bill will protect our data across borders, and encourage fair treatment by our international partners,” Sen. Coons stated about ICPA.

Overall, the legislation changes current law in four areas for the benefit of law enforcement. It allows law enforcement access to electronic communications on behalf of U.S. persons regardless of where the data is stored. ECPA did not intend for warrants to be served on data providers who stored data across national borders. It also strengthens law enforcement ability to obtain data on behalf of non-U.S. Persons who are physically present in the U.S. regardless of the location of the data.

ICPA also modernizes the MLAT process, making it more efficient. Additionally, legislation requires a warrant process for obtaining any electronic communications stored by service providers, regardless of the age of the data, eliminating the 180 day limit. This has no practical effect on law enforcement because most major providers today follow the Sixth Circuit’s Warshak decision and require law enforcement to provide a warrant.

Clearly ECPA is past due needing to be modernized and reformed to meet the needs of both consumer privacy and law enforcement needs in a changing technological world. ICPA is a great improvement over current law in both areas.