The U.S. Senate Committee on the Judiciary held a hearing to discuss reforms to the Electronic Communications Privacy Act (“ECPA”) proposed in Senate bill S. 356, The Electronic Communications Privacy Act Amendments Act of 2015.  The ECPA governs the interception of electronic communications for law enforcement purposes and government access to stored electronic communications.  Congress enacted the ECPA in 1986, but the law has been criticized for failing to keep up with changing technology despite updates over the years.  The Senate Judiciary Committee heard testimony from witnesses for the government, private industry, and privacy groups. 

The witnesses generally agreed on the need for certain updates to outdated technology assumptions in the ECPA.  For example, the ECPA currently requires the government to obtain a search warrant to compel an internet service provider to disclose the content of an email that is less than 180 days old, but only requires a subpoena to compel disclosure of an email that is older than 180 days.  The witnesses agreed that 180 days is an arbitrary distinction and should be eliminated.

However, the parties disagreed on whether the ECPA should permit the government to obtain email stored by an internet service provider with only a subpoena.  The Senate bill proposes revising the ECPA to require the government to obtain a warrant based on probable cause to access stored electronic communications.  Industry representatives testified in support of changing the ECPA to require a warrant to access stored electronic communications, arguing that the ECPA as currently written violates the Fourth Amendment to the extent that it does not require law enforcement to obtain a warrant to compel disclosure of stored email content.  (This is what the U.S. Court of Appeals for the Sixth Circuit held in United States v. Warshak, 631 F.3 266, 288 (6th Cir. 2010)). 

Government representatives disagreed with the proposed warrant requirement in the Senate bill.  Elana Tyrangiel, Principal Deputy Assistant Attorney General at the Department of Justice (“DOJ”), opposed the implementation of a blanket warrant requirement on the ground that civil regulators and litigators rely on subpoenas to investigate various forms of civil wrongdoing, including financial, antitrust, and environmental misconduct.  Andrew Ceresney, Director of the Division of Enforcement at the Securities and Exchange Commission (“SEC”), agreed with the DOJ’s position, although he proposed a compromise giving the subscriber or customer an opportunity to challenge a subpoena in a judicial proceeding.  Daniel Salsburg, Chief Counsel of the Office of Technology, Research and Investigation at the Federal Trade Commission (“FTC”), also supported the DOJ’s position—even though the FTC does not currently obtain the content of electronic communications through the ECPA—on the ground that the Senate’s proposal to require a warrant could hamper its future fraud investigations as more electronic communications move to the cloud. 

Another point of dispute is the government’s access to electronic communications stored abroad.  Currently, the government has a practice of serving process on companies in the United States to obtain electronic communications stored abroad.  Senator Orrin Hatch (R-UT) expressed concern that this current practice could put U.S. companies with international operations at risk of reciprocal treatment by foreign governments using their own process rules to seek the communications of Americans stored in the United States.  Senator Hatch has co-sponsored proposed legislation called the Enforcement Access to Data Stored Abroad Act (“LEADS Act”) that would authorize U.S. law enforcement to obtain a warrant under the ECPA to access the content of electronic communications of U.S. customers stored abroad, but would require U.S. authorities to coordinate with foreign law enforcement to obtain the communications of non-U.S. customers.  Ms. Tyrangiel of the DOJ expressed concern that requiring international cooperation would delay investigations, particularly where countries do not have a mutual legal assistance treaty (“MLAT”) with the U.S. for obtaining evidence.  But Victoria A. Espinel, President and Chief Executive Officer of BSA | The Software Alliance, testified in support of a model of international cooperation because she argued it would help U.S. companies to maintain consumer trust and international competitiveness and prevent U.S. companies from being placed in a position where cooperating with a warrant issued in the U.S. could potentially violate another country’s law. 

Senator Mike Lee (R-UT) introduced the Senate bill in February 2015 and tried to offer it as an amendment to cybersecurity legislation in August, but the bill did not make the list of measures for consideration.  Senator Lee is now working to pass the bill through the Senate Judiciary Committee, which held a hearing in September.  A vote of the full committee has not yet been scheduled.  Given the tight legislative schedule for the rest of the year, especially related to the budget, it is unclear when further action will be taken on the Senate bill.

Please click here to access the witness’ prepared statements before the Senate Judiciary Committee. 

Reporter, Kerianne Tobitsch, New York, NY, +1 212 556 2310, ktobitsch@kslaw.com.