ACLU Submits Testimony for Senate Hearing on Electronic Privacy

The American Civil Liberties today submitted written testimony to the Senate Judiciary Committee for a hearing on updating the Electronic Communications Privacy Act (ECPA). ECPA became law in 1986 and has not been updated to reflect the vast technological advances that have occurred since its passage. The ACLU is asking Congress to require government officials to obtain a warrant based on probable cause before allowing access to any electronic records, such as e-mails and internet search histories, just as they have always had to do for other sensitive personal information.

"The Electronic Communications Privacy Act was written in 1986 before the Web was even invented and is in desperate need of an upgrade," said Laura W. Murphy, Director of the ACLU Washington Legislative Office. "While Americans have embraced technology as an essential part of everyday life, they have not surrendered their fundamental right to privacy. Congress must ensure that our privacy laws reflect the technology Americans use every day."

Specifically, the ACLU is asking Congress to modernize ECPA to:

• Robustly Protect All Personal Electronic Information. Congress must ensure that current loopholes in our privacy laws are closed to ensure that electronic information, including most transactional communications, receive full warrant protection regardless of their age or nature.
• Safeguard Location Information. Cell phones - a novelty in 1986 - have become ubiquitous. They constantly broadcast user location and can reveal personal activities such as attendance at events or medical clinics. The law should require government officials to obtain a warrant based on probable cause before allowing access.
• Institute Appropriate Oversight and Reporting Requirements. So Congress can fulfill its oversight role and ensure adequate transparency to the public, existing reporting requirements for wiretap orders must be extended to all types of law enforcement surveillance requests.
• Require a Suppression Remedy. Just as non-electronic information illegally obtained by law enforcement is not admissible in a court of law, the same should be true of illegally obtained electronic information. The discrepancy in the law encourages government overreaching and must be changed to require a judge to bar the use of such unlawfully obtained information in court proceedings.
• Craft Reasonable Exceptions. Overbroad exceptions are also depriving Americans of their rightful privacy protection. Currently ECPA sometimes allows access to the content of communications without a true emergency, without informed consent or oversight and without prompt notice to the subject. These overly broad exceptions must be amended to properly safeguard Americans' privacy rights.

"As it's currently written, the Electronic Communications Privacy Act is not living up to its name. Every day, Americans conduct more and more of their lives online while their privacy protections remain stuck in the '80s," said Christopher Calabrese, ACLU Legislative Counsel. "As our technology advances, so must our privacy. Congress must give Americans comprehensive protection for records of their e-mails, texts and cell phone locations."

The ACLU's statement for the record submitted to the committee is here: www.aclu.org/technology-and-liberty/aclu-statement-senate-judiciary-committee-electronic-communications-privacy-a

More information on the ACLU's work with online privacy can be found at: www.dotrights.org and www.aclu.org/ecpa