Update Privacy Laws for the Digital Age

By Sen. Patrick Leahy & Sen. Mike Lee

Americans routinely are bombarded with news stories about invasive new surveillance technologies. But Congress has yet to pass even the most basic legislation on the issue: a bill to ensure that law-enforcement agents cannot read Americans' private e-mails without search warrants.

In the coming weeks, we will reintroduce legislation to update the Electronic Communications Privacy Act (ECPA) and safeguard the privacy of e-mail and other information stored in "the cloud." In the last Congress, the Senate Judiciary Committee unanimously approved this bipartisan bill, but it has yet to become law. Today is Data Privacy Day, reminding everyone of the work that needs to be done.

The Constitution guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But that guarantee is at risk when the government can search and seize vast troves of our private e-mails, texts, and social-media posts without our knowledge or consent -- and without a search warrant.

Almost 30 years ago, Congress enacted ECPA to protect the privacy of these communications. At that time, no one could have imagined how the Internet and mobile technologies would transform the way Americans communicate and exchange information. There was no World Wide Web, no cloud computing, and no social media -- much of the technology that we take for granted today. After three decades, it is time to update this law.

The proposal we will soon introduce requires the government to obtain a search warrant, based on probable cause, before searching through the content of Americans' e-mail or other electronic communications stored with a service provider such as Google, Facebook, or Yahoo!. The government is already prohibited from tapping our phones or forcibly entering our homes to obtain private information without warrants. The same privacy protections should apply to our online communications.

Our legislation will take into account privacy interests, law-enforcement needs, and the interests of our thriving American tech sector. In our global economy, American technology companies are competing internationally and need to rebuild consumer trust. And just like the bill that garnered broad support in the last Congress, our bill will include balanced exceptions to the warrant requirement to address emergency circumstances.

Support for ECPA reform continues to grow. We have been joined in the effort by senators from both sides of the aisle, and last year 273 members of the House of Representatives supported this legislation. A diverse coalition of more than 100 leaders in the privacy, civil-liberties, civil-rights, and technology communities, including Americans for Tax Reform, the ACLU, the Heritage Foundation, the Center for Democracy and Technology, and many major technology companies, also support our bill. 

Just last week, many of these organizations joined together to urge the Senate to pass ECPA reform. In a letter to the Judiciary Committee, these organizations said that not only would ECPA legislation "allow law enforcement officials to obtain electronic communications in all appropriate cases while protecting Americans' constitutional rights," but it also would "provide certainty for American businesses developing innovative new services and competing in a global marketplace."

Many Americans are frustrated that Congress seems more interested in partisan bickering than in getting things done. By working together, as a Democrat from Vermont and a Republican from Utah, we hope that all senators will join us to pass meaningful and bipartisan legislation that benefits all Americans. Congress should pass ECPA reform this year, and President Obama should sign these important privacy reforms into law. 

Sen. Patrick Leahy (D., Vt.) serves as ranking member of the Senate Judiciary Committee and authored the original Electronic Communications Privacy Act (ECPA) in 1986. Sen. Mike Lee (R., Utah) is also a member of the Judiciary Committee.

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