ECPA and the Omnibus

By Paul Rosenzweig
Wednesday, December 16, 2015, 3:19 PM

While we are at it, I thought I would also call attention to this provision of the Omnibus. It appears in the section which funds the financial services agencies (that is, it applies to the IRS, SEC, FTC, GSA, and OMB):

SEC. 627. None of the funds made available in this Act may be used by a governmental entity to require the disclosure by a provider of electronic communication service to the public or remote computing service of the contents of a wire or electronic communication that is in electronic storage with the provider (as such terms are defined in sections 2510 and 2711 of title 18, United States Code) in a manner that violates the Fourth Amendment to the Constitution of the United States.

One has to wonder -- after all, there are no appropriations ever made that actualy DO authorize violations of the Fourth Amendment, so this rather circular provision simply means "don't do what you shouldn't do." On the other hand the SEC has been the hold-out on provisions to revise the ECPA, more generally -- asserting a right to access records in its civil investigations. So this might be read as a rebuke to the SEC.