Lawmakers introduce bipartisan privacy reform legislation

WASHINGTON D.C. - Lawmakers introduced bipartisan legislation today updating a decades old communications privacy law to better shield Internet users and wireless subscribers from overly broad government surveillance programs.

The Online Communications and Geolocation Protection Act, introduced by U.S. Reps. Zoe Lofgren (D-Calif.), Ted Poe (R- Texas), and Suzan DelBene (D- Wash.), modernizes the 1986 Electronic Communications Privacy Act (ECPA) by requiring government agencies to obtain a search warrant based on probable cause prior to intercepting or forcing disclosure of electronic communications or geolocation data.

The 1986 law – intended to set legal standards that law enforcement agencies must meet to access electronic communications – has failed to keep pace with rapidly evolving technology, leading to weak and convoluted privacy protections from government access to user data. As consumers and businesses increasingly use cloud computing and location-based services, the law's standards no longer reflect the way these services are used today, nor adequately protect Americans' right to privacy.

"Fourth Amendment protections don't stop at the Internet, and Americans rightly expect Constitutional protections to extend to their online communications and location data," Lofgren said. "Establishing a warrant standard for government access to cloud and geolocation provides Americans with the privacy protections they expect, and would enable service providers to build greater trust with their users and global trading partners."

"Technology may change, but the Constitution does not. Whether an individual's property is physical or digital, it must be protected from snooping government eyes, as required under the Fourth Amendment. It's time for Washington to modernize this outdated legislation and protect individual privacy," said Poe.

"Advances in technology and the Internet have dramatically changed the way we communicate, live and work. In this constantly evolving world, Congress must be a good steward of policy to ensure our laws at least keep pace," said DelBene. "When current law affords more protections for a letter in a filing cabinet than an email on a server, it's clear our policies are outdated. This bill will update privacy protections for consumers while resolving competing interests between innovation, international competitiveness and public safety."

As currently written, the Electronic Communications Privacy Act does not clearly require law enforcement to obtain a warrant to access the content of Americans' online communication – instead, ECPA permits law enforcement to access content with a mere subpoena if the content is more than 180 days old.

ECPA also fails to include any clear standards for law enforcement access to location information, such as tracking an individual's cell phone location. The unclear and complex standards have led to confusion in U.S. courts, a significant compliance burden for businesses, a competitive disadvantage with international businesses in countries with stronger laws against government access, and inadequate privacy for Americans.

The Online Communications and Geolocation Protection Act fixes ECPA by applying Constitutional privacy guarantees under the Fourth Amendment to an individual's digital communications and location data while minimizing the impact on law enforcement investigations. The bill will:

• Require the government to obtain a warrant to access to wire or electronic communications content;
• Require the government to obtain a warrant to intercept or force service providers to disclose geolocation data;
• Preserve exceptions for emergency situations, foreign intelligence surveillance, individual consent, public information, and emergency assistance;
• Prohibit service providers from disclosing a user's geolocation information to the government in the absence of a warrant or exception;
• Prohibit the use of unlawfully obtained geolocation information as evidence;
• Provide for administrative discipline and a civil cause of action if geolocation information is unlawfully intercepted or disclosed.

Click here for a section-by-section summary of the Online Communications and Geolocation Protection Act.