Decades-Old ECPA Needs Update, CEI Urges

Washington, D.C., November 29, 2012 — This morning, the U.S. Senate Judiciary Committee will vote on an amendment to the 1986 Electronic Communications Privacy Act (ECPA), which governs law enforcement access to private information held electronically by third parties. The Committee will also vote on tweaks to the Video Privacy Protection Act.

The Competitive Enterprise Institute, a public interest group that studies regulation and markets, strongly urged members of the Committee to vote in favor of proposed reforms to ECPA and VPPA.

The following statement may be attributed to Ryan Radia, Associate Director of Technology Studies at the Competitive Enterprise Institute:

It’s high time for Congress to bring the Electronic Communications Privacy Act into the 21st century. The 1986 law is out of touch with reality as technology has evolved and Americans have come to rely on cloud computing services, including webmail and social networking, and location-based mobile services.

ECPA fails to adequately protect Americans from unreasonable searches of their private information stored with cloud and mobile providers. Thus, law enforcement can sometimes access users’ private information—including stored emails and backup files—without showing probable cause or even notifying users that the government has accessed their private data.

The changes to ECPA under consideration before the Senate Judiciary Committee would resolve legal ambiguities and affirm Constitutional protections by establishing electronic privacy standards that are consistent with the Fourth Amendment. The proposed reforms would generally require government officials to obtain a warrant issued by a judge upon a showing of probable cause before compelling cloud or mobile providers to disclose the contents of user information or locational data. At the same time, the bill ensures that law enforcement officials have the necessary tools to preserve national security and fight crime, and retains exceptions for emergencies that endanger human life.

Modernizing ECPA is essential if the cloud computing revolution is to realize its full potential. Companies that offer innovative electronic communications services must be able to maintain trustworthy relationships with their users. The success of cloud computing and mobile services—and their benefits for the U.S. economy—depends on Congress ensuring governs electronic privacy.