On Thursday, the Senate Judiciary Committee will vote on HR 2471: a bill that will update a 1986 law called the Electronic Communications Privacy Act (ECPA). The original law was written years before the World Wide Web became a real thing that millions of people around the world use, and its authors didn't anticipate the explosion of mobile technologies or consumer data giants like Google and Facebook. As our own Joshua Kopstein pointed out, the sole reference point for our government's guidelines on data privacy is more than two decades old. While that doesn't seem like a lot of time up against the entire span of American civilization, it's an eternity in the age of the internet — a gap that's caused problems for citizens and law enforcement agencies trying to deal with a world that's very different from the one the bill was born into.
"The courts are all over the place."
For starters, electronic searches are not settled as a matter of law. As the Electronic Frontier Foundation tells The New York Times, "the courts are all over the place. They can't even agree if there's a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection." In recent years, only limited cases have been decided definitively: the Supreme Court ruled in January that law enforcement agents need warrants to track criminal suspects with GPS, but the case left other questions surrounding electronic surveillance unsettled. And considering the proliferation of government requests for private data from companies like Google and Twitter, there's a very clear need for new legislation to deal with electronic privacy.
The new ECPA could help or hinder the privacy of citizens, and we're still not sure what to expect when the bill surfaces for a vote on Thursday in committee. Last week a report from CNET indicated that committee chairman Patrick Leahy (D-VT) planned to revise the bill and reverse the ECPA's new protections by allow federal agencies to read email and access other electronic files without a search warrant. Leahy's office denied the report on Twitter, but the full bill and potential amendments won't be public until Thursday's meeting — an important step in getting the bill passed in the Senate on its way to potentially becoming law.