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Everybody Wants to Reform ECPA - So Where's the White House?

A cartoon of a screen with many app logos, and the words "It's time for a privacy update!"
A cartoon of a screen with many app logos, and the words "It's time for a privacy update!"
Sandra Fulton,
ACLU Washington Legislative Office
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April 29, 2014

A coalition of over 70 organizations sent a letter yesterday to President Obama, urging him to support a clean update to our online privacy laws and warning him about the dangers of carving out any exceptions that would give some government agencies warrantless access to our online communications. The message was simple:

We write today to urge you to support reform of the Electronic Communications Privacy Act (ECPA) to guarantee that every American has full constitutional and statutory protections for the emails, photos, text messages, and other documents that they send and share online.

It was delivered by some powerful and diverse messengers. A host of consumer protection organizations joined with the U.S. Chamber of Commerce. Civil rights groups paired with small government conservatives. Tech companies banded with librarians.

All of this reflects the genuine, overwhelming support for an update to our email privacy laws. ECPA, the main statute protecting privacy online, was written in 1986, and despite Congress’ best intentions, its privacy safeguards have become outdated and loopholes have arisen. The letter calls for the president to support the Email Privacy Act, which would update ECPA by protecting all online communications with a warrant. It was sent in anticipation of a report from the President’s “Big Data Review Group,” which is expected to be released this week.

This should not be complicated:

Updating our electronic privacy laws has enormous popular and political support. 100,000 Americans signed a petition in November 2013 urging your support for ECPA reform. That petition has still not received a response. More than 200 members of the House of Representatives have cosponsored H.R. 1852. The Senate Judiciary Committee has voted S. 607 out of committee on a voice vote. More than 100 privacy and consumer groups, companies, and trade associations have joined a coalition to reform ECPA. Civil rights, media justice, and privacy groups have recently endorsed civil rights principles for big data that call for updating constitutional protections like ECPA when addressing new technologies.

Seems like a noncontroversial, politically popular step that a president so often mired in accusations of pervasive surveillance could take to appease his detractors and begin rebuilding trust among the American people. This is no small feat in today’s starkly divided political climate. But despite the widespread calls for action, so far the administration refuses to support a clean update.

Strangely, the pushback is not coming from law enforcement this time, but rather from civil agencies such as the Securities and Exchange Commission (SEC) and the Internal Revenue Service (IRS), who would like to use the bill to enhance their own authority. They’re arguing for a huge loophole (which you can read about here) that could allow non-criminal investigations into our inbox from everyone from the IRS to the local health inspector.

The White House needs to move beyond these agency concerns, listen to this plethora of groups, and embrace real commonsense reform this year.

If you’d like to add your voice to the chorus please visit:

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