By Chris Calabrese, Legislative Counsel, American Civil Liberties Union
The Hill broke a fascinating story last week: many major email providers are already requiring a warrant for the content of the communications they hold. What you say, this doesn’t sound fascinating at all? It really is—just bear with me.
For the last several months the Senate Judiciary Committee has been fighting over this precise issue: how to update the nearly three-decades-old Electronic Communications Privacy Act (ECPA). Chairman Patrick Leahy (D-Vt.) has long sought a standard where all communications and content must meet the warrant standard. That would mean information in Gmail accounts, Amazon cloud storage and text messages sent through Verizon would all have to meet the same standards—a warrant based on probable cause—that police currently need to search a home. But when Leahy brought the issue before the full committee last Congress, the response from law enforcement was that the proposal would have a dire impact on police practices.
Some local law enforcement claimed it would delay investigation in cases of missing children. The Federal Law Enforcement Officers Association expressed “profound disappointment,” and the Federal Bureau of Investigation Agents Association worried it “could hamstring critical law enforcement efforts.” Legislation to amend the statute with a warrant was voted out of committee but never got to the floor for a vote. While the vote was bipartisan, some Republicans expressed reservations about the legislation and the expectation that all of this should be revised in the new Congress.