No one can argue convincingly that the email, photos and documents we store electronically are any less important to our personal and professional lives than the ones we keep on paper. Yet they are still held to different standards: Authorities need a warrant to search an old-fashioned file cabinet, but not your hard drive or email account.
That’s because the law that governs access to digital records, the Electronic Communications Privacy Act, or ECPA, turns 28 years old this week. It was enacted in 1986 — well before anyone but a small handful of scientists and academics had ever used the Internet — and it is long overdue for reform. Addressing this issue is an important step in building public trust in the innovative technologies at the heart of the digital economy.
Lawmakers in both parties agree on this proposition and have coalesced around appropriate reform measures. In the Senate, Judiciary Chairman Patrick Leahy (D-Vt.) has partnered with Mike Lee (R-Utah) to introduce the ECPA Amendments Act (S. 607), a bill that would fix the law by requiring authorities to obtain warrants to access private electronic communications from service providers. A companion bill in the House (H.R. 1852) has attracted more than 270 co-sponsors, and a broad coalition of public-interest groups and industry voices also supports reform.
These efforts have stalled, however, because civil agencies, led by the Securities and Exchange Commission, have urged Congress to re-create the accident of history that gave them access digital records with only a subpoena.
It is time for Congress to break this logjam. So BSA, along with a diverse coalition of technology companies and civil society groups, wrote letters last month to House and Senate leaders calling for a vote on the pending legislation. The upcoming lame duck session will be their last opportunity in this Congress. This is an achievable bipartisan accomplishment that also would be very well worthwhile.
To stay relevant, laws must evolve with technological reality. ECPA is way behind the times. It must be updated for the 21st century.