ECPA and the Mire of DC Politics: We Shouldn't Have to Trade Video Privacy to Get Common-Sense Protections of our Email

On Thursday, the Senate Judiciary Committee is marking up a bill that would amend the Video Privacy Protection Act (VPPA) in ways we think are unnecessary and potentially bad for users, giving companies new rights to share your video rental history after they get your "consent" just once. It undermines one of the strongest consumer privacy protections we now enjoy. But there is a silver lining: Senator Patrick Leahy (D-VT) is attaching an amendment to the bill requiring that the government get a search warrant before reading our emails. That's great and we strongly support it. But Americans shouldn't have to give up any video privacy in order to get more email privacy. Instead of horse-trading with our freedoms, we demand that Congress do the right thing: update the law to safeguard our email privacy without undermining video privacy protections in the process.

What Needs to be Protected

Leahy is right in pushing to reform the outdated Electronic Communications Privacy Act (ECPA)--a law passed in 1986 meant to protect our privacy in the digital technologies of that time. However, as the New York Times noted this week, the law is painfully out of date. And while the courts have increasingly used the Fourth Amendment to ensure that the government obtain a warrant before accessing the content of private online messages, the Fourth Amendment is, and should be, supported by clear statutory protections, as Justice Alito recently noted.

EFF believes that, as a start, Congress should require that the government get a warrant in order to access three types of content: documents in the cloud, email content and location information. Leahy's amendment aims to protect two of them:

• Communications in the cloud: The amendment requires the government to get a search warrant before accessing electronic communications we store in the cloud like a collaborative document we store on Google.
• Email: The amendment requires the government to get a warrant before accessing our email and other digital communications like private chat messages. This high standard shouldn't depend on how old a message is or whether it has been opened--distinctions created byECPA in the 1980s that make no sense today.

Remember, a probable cause warrant is a higher legal standard than a subpoena, and so more protective of your privacy. While a government agent can issue a subpoena without any checks or balances, a search warrant generally requires the government agent to go to a neutral and detached magistrate and swear to facts demonstrating probable cause to believe that evidence of a crime will be found and describing the particular place to be searched (or in the case of digital evidence, of how the search will be conducted), and that the request is reasonable.

Ensuring that the government apply for and receive a warrant before accessing our digital documents is in keeping with the Fourth Amendment, which upholds:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While the Electronic Communication Privacy Act may be vague and outdated, the principles of the Fourth Amendment are clear: the government shouldn't access our private communications without a judge's explicit approval.

The Fourth Amendment is Not Negotiable

The Senate Judiciary Committee is engaged in high-stakes negotiations over our privacy rights this week. But compromising on our digital privacy--or horse-trading some privacy rights to gain others--isn't right for users. Here's what we need to guard against:

• Amendments to water down warrant protections. Even as Leahy is pushing to fix ECPA, other Senators (especially Senator Charles Grassley (R-Iowa)) and law enforcement agencies are planning to introduce amendments that would create gaping exceptions to these protections. Yet an increasing number of conservatives are voicing their concerns about government agents rifling through people's communications without good cause; lawmakers should take heed.
• Compromising the VPPA. The Video Privacy Protection Act is one of the strongest consumer privacy laws we have on the books, ensuring the highest levels of privacy protection in keeping the videos you watch online and offline away from prying eyes. Tying ECPA reform to a bill that would undermine VPPA protections is the wrong approach.

The Senate Judiciary Committee will be considering this matter on Thursday morning at 10 AM EST/7AM PST. We'll be live tweeting the hearing from @EFFLive. In the interim, please join us in speaking out for privacy reform through our coalition site and our petition to Congress.