Reps. Zoe Lofgren Introduces Bipartisan ECPA Reform Bill

March 6, 2013
Press Release

Reps. Zoe Lofgren (D-San Jose), Ted Poe (R-TX) and Suzan DelBene (D-WA) today introduced bipartisan legislation modernizing the 1986 Electronic Communications Privacy Act (ECPA). Consumers and businesses are increasingly using cloud computing and location-based services, but the law has failed to keep pace with technology – leading to weak and convoluted privacy protections from government access to user data. The bill, H.R. 983, the Online Communications and Geolocation Protection Act, would strengthen the privacy of Internet users and wireless subscribers from overbroad government surveillance by requiring the government to get a warrant based on probable cause before intercepting or forcing the disclosure of electronics communications and geolocation data.

"Fourth Amendment protections don't stop at the Internet. Americans expect Constitutional protections to extend to their online communications and location data," Rep. 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 foster greater trust with their users and international trading partners."

"As technology continues to evolve and improve, Congress must ensure that the Fourth Amendment rights of our citizens are protected. We live in a much different world than 1986," Rep. Poe said. "It's time for Washington to modernize this outdated legislation to catch up with the times. Technology may change, but the Constitution does not."

"In the past decade, advances in technology and the Internet have dramatically changed the way we communicate, live and work – and in this constantly evolving world, Congress must be a good steward of policy to ensure our laws keep up," said Rep. 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law affords more protections for a letter in a filing cabinet than an email on a server, it's clear our policies are outdated.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."

Rep. Lofgren's Online Communications and Geolocation Protection Act would apply 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 would:

  • 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.

The legislation modifies ECPA, a law that sets legal standards that law enforcement agencies must meet to access electronic communications, such as social networking messages or email to/from information. However, ECPA was enacted nearly three decades ago, well before modern online services became mainstream, and its standards do not reflect the way these services are used today. As currently written, ECPA does not clearly require law enforcement to obtain a warrant to access the content of Americans' online communication – instead, ECPA permits law enforcement to use 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 from government for Americans.

Rep. Lofgren introduced an earlier version of the Online Communications and Geolocation Protection Act last year with her ECPA 2.0 Act, and promised to reintroduce similar legislation in the 113th Congress as part of her Internet Freedom legislative agenda.

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

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