The Senate Judiciary Committee is set to hold a hearing Wednesday morning on the standards that law enforcement agencies must meet to search electronic records and messages.
The committee will consider reforms to the Electronic Communications Privacy Act, which sets the bar that law enforcement agencies must meet to obtain warrants to snoop through digital property. The law, passed in 1986, governs search warrant requirements but has not been updated to reflect modern technology. Critics say that has allowed law enforcement to circumvent due process for virtual searches.
Currently, federal statutes allow law enforcement agencies to obtain e-mails, text messages and other private communications using an administrative warrant, the requirements for which are not as stringent as those imposed by probable cause. Proposed reforms would increase the standard to require a probable cause warrant in most cases.
The legislation has been the subject of proposed action for years, and a bipartisan coalition, led by Sens. Mike Lee, R-Utah, and Patrick Leahy, D-Vt., appears set to pass some sort of reform this year. However, at stake is how much the law would change. In particular, reform advocates have suggested that it should end “civil agency” exemptions, which allow agencies such as the Securities and Exchange Commission to claim an exemption from the law’s requirements.
A group of privacy advocates and leaders in the software industry, such as Apple, Amazon and the American Civil Liberties Union, have called for a number of additional reforms as part of a coalition called “Digital Due Process.” One of the most prominent would be requiring federal authorities to obtain a warrant before obtaining GPS data from mobile phones. However, federal agencies such as the Justice Department have been engaging in that practice for years and it is highly unlikely that federal authorities would use the law’s changes to impose such a requirement.
Bartlett Cleland, vice president of Innovation and Technology at the conservative American Legislative Exchange Council, another member of Digital Due Process, told the Washington Examiner he is optimistic about the direction the hearing will take. However, he noted, “I would hope … we don’t get lost along the way with comments about fears and who might slip through the fingers of law enforcement.
“I would like to see an acknowledgement and a change in the approach of law enforcement,” he said. “This is not a debate about whether information can be obtained by law enforcement. This is a debate about whether law enforcement needs to get a warrant to get information.”
The Business Software Alliance, comprised of companies such as Microsoft, Oracle, Symantec and other technology industry leaders, sent a letter to lawmakers Monday asking them to pass the proposed revisions. The law, they said, “was enacted in 1986, years before most Americans had even heard of the Internet.”
“Given this context, ECPA’s standards require updating to better reflect the reality of today’s online-enabled world,” the letter said.
Victoria Espinel, president of the Software Alliance, is one of the witnesses scheduled to testify on the matter before the Senate panel Wednesday.
