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Is It Time to Pop the Champagne for ECPA?

It generally isn’t a good idea to celebrate before a vote in Congress. But it also isn’t generally the case that the House is voting on a measure that is sponsored by nearly three-quarters of its Members. That is the situation this week, with a vote coming on the Email Privacy Act — a bill sponsored by a staggering 314 Representatives.

And those circumstances are why this time perhaps it’s worth celebrating — just a bit — this big step for privacy even before votes are cast.

It shouldn’t be surprising that so many have signed on in support of the Email Privacy Act. The bill makes a significant improvement in privacy protections for technology users. At its core, the legislation updates the Electronic Communications Privacy Act (ECPA) to ensure that law enforcement get a warrant in order to obtain the content of users’ email and other files that are stored online.

That change makes sense as more and more of our communications and files move from our desk drawers to our virtual cabinets in the cloud. In our homes, Americans have an expectation of privacy in their “papers and effects [ ] against unreasonable searches and seizures.” Yet, based on an arbitrary distinction written into a law that was drafted 1986 — at the dawn of the Internet Age — that expectation has not been guaranteed online. By eliminating that distinction, the Email Privacy Act will ensure digital files receive an appropriate level of protection.

So, even before the vote, there is much to celebrate about the progress made on ECPA reform this year. Reps. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) deserve tremendous praise for driving the strong support for the bill. Building on their work, House Judiciary Committee Chairman Goodlatte should be applauded for driving a compromise proposal that the core goal of ECPA reform. Many of those involved in this debate also have pledged that they will continue to work to address other ECPA concerns. These include the rules around government access to location data and the pressing need to create a framework for law enforcement access to data held overseas.

The one thing putting a damper on this celebration? Uncertainty in the Senate. With the limited number of legislative days this year, it will be a challenge to finalize ECPA reform in the current Congress. That’s unfortunate, and the wide-ranging coalition of ECPA supporters will now turn their efforts to ensure Senate Judiciary Chairman Grassley hears the calls for further votes for privacy — and further celebrations.

Chris Hopfensperger

Author:

Chris Hopfensperger works with the BSA | The Software Alliance’s members to develop the BSA’s technology policy positions and articulate these positions to US and international policy makers. He advises members in such critical areas such as innovation, copyright protection, privacy, e-commerce, and cloud computing.

Prior to joining BSA, Hopfensperger served as a technology and trade policy associate with K&L Gates, where he advised companies and industry associations on pursuing legislation and representing their issues before Congress and the federal agencies and in the courts. Previously, Hopfensperger worked as a newspaper journalist. He edited and wrote for several metropolitan dailies, including The Washington Post, The Sacramento Bee, and the St. Petersburg Times.

Hopfensperger holds a law degree from the University of Michigan and a bachelor’s degree in journalism from the University of Nebraska. He is based in BSA’s Washington, DC, office.

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