Updating the ECPA

By Paul Rosenzweig
Tuesday, March 19, 2013, 4:00 PM

Who says that bipartisanship is dead and that our legislative process doesn't work.  For those who despair in all cases, take note today of the joint effort by Senators Leahy and Lee to update the Electronic Communications Privacy Act.  The current structure of ECPA, which was adopted in 1986, stems from a time when nobody could imagine that anyone would ever store lots of data (like emails) for long periods of time -- the expense was too great.

So ECPA adopted an odd rule that communications stored for longer than 180 days would be accessible by law enforcement through a subpoena rather than by a warrant.  This had the result of making long-term stored email less well protected than, say, diaries or letters or your telephone communications.  Who knew that Gmail was in the future?

Recognizing this technological oddity, the Leahy-Lee bill would update ECPA to require a warrant for access to stored communications.  Reflecting the common-sense nature of this proposal, the Department of Justice testified today in favor of the general principle (though with some carve outs and exceptions that will engender some dispute).  But I join Orin Kerr in thinking this is a fundamentally good idea.  We'll track its legislative progress as it moves along.

UPDATE:  Ben Wittes may agree too. [I've always liked this article.]