Bill to Amend 1986 Communications Privacy Law Goes to Senate

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Senator Patrick Leahy (D-VT.), author of the original Electronic Communications Privacy Act (or ECPA), is once again pushing for amendments that take into account rapid advances in technology since, er, 1986. Passing the Senate Judiciary Committee today, the bill will soon be debated by the Senate.

In Leahy’s own words, the “bill takes several important steps to improve Americans’ digital privacy rights, while also promoting new technologies -- like cloud computing -- and accommodating the legitimate needs of law enforcement.”

Engine, together with a coalition of tech companies, is pleased with the clarity this new act brings to how content can be accessed by government; excluding emergencies, law enforcement must obtain a warrant in order to compel a service provider to disclose the private content of users.

Since data plays an increasingly important role for many startups, uncertainty about compliance increases the burden of time and resources, and puts a strain on user trust. Currently, a complex legal request from law enforcement would force startups to chose between legal action and alienating users.

The bipartisan Amendment Act is co-sponsored by Senator Mike Lee (R-UT). “When ECPA was enacted”, Senator Lee explained, “email was primarily a means of communicating information, not storing it. Today, we use our email accounts as digital filing cabinets, where we store many of the personal documents and sensitive information that the Fourth Amendment was meant to protect. This bill takes an essential step toward ensuring that the private life of Americans remains private.”

Here’s a rundown of this new bill:

  • Search warrant required for email and other electronic communications, when those communications are stored with a third-party service provider.
  • Requirement does not apply to other Federal criminal

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    or national security laws including Wiretap Act and Foreign Intelligence Surveillance Act of 1978

  • Government can use administrative, civil discovery and grand jury subpoena to obtain corporate email and other electronic communications directly from a corporate entity, when the content is on an internal email systemGovernment can use civil discovery subpoenas to obtain non-content information
  • Bill eliminates the outdated “180-day” rule that calls for different legal standards for the government to obtain email content depending upon the age of an email
  • Government must notify an individual whose electronic communications have been disclosed within 10 days of obtaining a search warrant, but they can also seek a court order to delay this notice in order to protect integrity of ongoing investigations

Tweet at any or all of the members of the Senate Judiciary Committee listed below to tell them that protecting data matters to startups.

Chairman Patrick Leahy @SenatorLeahy

Sen. Michael Lee @SenMikeLee

Ranking Member Charles Grassley @ChuckGrassley

Sen. Dianne Feinstein @SenFeinstein

Sen. Orrin Hatch @Orrin Hatch

Sen. Chuck Schumer @ChuckSchumer

Sen. Dick Durbin @SenatorDurbin

Sen. Jeff Sessions @SenatorSessions

Sen. Sheldon Whitehouse @SenWhitehouse

Sen. Lindsey Graham @GrahamBlog

Sen. Amy Klobuchar @amyklobuchar

Sen. John Cornyn @JohnCornyn

Sen. Al Franken @alfranken

Sen. Christopher Coons @ChrisCoons

Sen. Richard Blumenthal @SenBlumenthal

Sen. Ted Cruz @TedCruz

Sen. Jeff Flake @JeffFlake

Sen. Mazie Hirono @maziehirono

Photo courtesy of Talk Radio News Service.