Below are some additional resources on the Electronic Communications Privacy Act (ECPA) and the need to update the law for the Digital Age.
Legislation:
- Electronic Communications Privacy Act Amendments Act of 2013, S. 607 This bill, introduced on March 19, 2013 by Senators Patrick Leahy (D-VT) and Mike Lee (R-UT), would require law enforcement officials to obtain a warrant in order to require service providers to disclose email and other stored documents.Statement of Sen. LeahySection-by-section summary
- Online Communications and Geolocation Protection Act, H.R. 983 This bill, introduced on March 6, 2013 by Rep. Zoe Lofgren (D-CA), Rep. Ted Poe (R-TX) and Rep. Suzan DelBene (D-WA), would require law enforcement officials to obtain a warrant in order to compel a service provider to disclose stored email or other private documents or to track the movements of a person through his or her cell phone.Section-by-section summaryStatement of Rep. Lofgren
- Geolocation Privacy and Surveillance Act, H.R. 1312, S. 639The “GPS Act” would require government agents to obtain warrants in order to access geolocation information generated through use of a cell phone or other mobile device. It was introduced in the Senate by Sen. Ron Wyden (D-OR) and Sen. Mark Kirk (R-IL) on March 21, 2013, and on the same day in the House by Rep. Jason Chaffetz (R-UT), Rep. Jim Sensenbrenner (R-WI) and Rep. John Conyers (D-MI).Statement of Sen. WydenStatement of Sen. Kirk
Hearings:
“The Electronic Communications Privacy Act (ECPA), Part 2: Geolocation Privacy and Surveillance,” House Judiciary Committee, Subcommittee on Crime, Terrorism, Homeland Security and Investigations, April 25, 2013.
Witnesses:
- Mark Eckenwiler, Perkins Coie
- Peter A. Modaferri, International Association of Chiefs of Police
- Catherine Crump, ACLU
- Matt Blaze, University of Pennsylvania
“The Electronic Communications Privacy Act (ECPA), Part 1: Lawful Access to Stored Content,” House Judiciary Committee, Subcommittee on Crime, Terrorism, Homeland Security and Investigations, March 9, 2013.
Witnesses:
- Elana Tyrangiel, U.S. Dept. of Justice
- Richard Littlehale, Tennessee Bureau of Investigation
- Orin Kerr, George Washington Univ. Law School
- Richard Salgado, Google
The Electronic Communications Privacy Act: Government Perspectives on Protecting Privacy in the Digital Age,” Senate Judiciary Committee, April 6, 2011.
Witnesses:
- Cameron F. Kerry, General Counsel, U.S. Dept. of Commerce
- James A. Baker, Associate Deputy Attorney General, U.S. Dept. of Justice
“ECPA Reform and the Revolution in Cloud Computing,” House Judiciary Committee,” September 23, 2010.
Witnesses:
- Edward W. Felten, Ph.D., Director, Center for Information Technology, Princeton University
- Richard P. Salgado, Senior Counsel, Law Enforcement and Information Security, Google, Inc.
- Michael D. Hintze, Associate General Counsel, Microsoft Corporation
- Paul Misener, Vice President for Global Policy, Amazon.com
- David R. Schellhase, Executive Vice President and General Counsel, Salesforce.com
- Perry C. Robinson, Associate General Counsel, Rackspace Hosting
- Kevin D. Werbach, Associate Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania
- Fred H. Cate, Director, Center for Applied Cybersecurity Research, Indiana University
- Thomas B. Hurbanek, Senior Investigator, Computer Crime Unit, New York State Police
- Kurt F. Schmid, Executive Director, Chicago High Intensity Drug Trafficking Area Program
- Marc J. Zwillinger, Partner, Zwillinger Genetski, LLP
“The Electronic Communications Privacy Act: Promoting Security and Protecting Privacy in the Digital Age,” Senate Judiciary Committee, September 22, 2010.
Witnesses:
- Cameron F. Kerry, General Counsel, U.S. Dept. of Commerce
- James A. Baker, Associate Deputy Attorney General, U.S. Dept. of Justice
- James X. Dempsey, Vice President for Public Policy, Center for Democracy & Technology
- Brad Smith, General Counsel and Senior Vice President, Legal and Corporate Affairs, Microsoft
- Jamil N. Jaffer, Attorney
“ECPA Reform and the Revolution in Location Based Technologies and Services,” House Judiciary Committee, June 24, 2010.
Witnesses:
- Matthew A. Blaze, Ph.D., Associate Professor of Computer and Information Science, University of Pennsylvania
- Michael Amarosa, Sr. Vice President, Public Affairs, TruePosition, Inc.
- Richard Littlehale, Assistant Special Agent in Charge, Technical Services Unit, Tennessee Bureau of Investigation
- Marc J. Zwillinger, Partner, Zwillinger Genetski, LLP
- Hon. Stephen Wm. Smith, U.S. Magistrate Judge, Southern District of Texas
“Electronic Communications Privacy Act Reform,” House Judiciary Committee, May 5, 2010
Witnesses:
- James X. Dempsey, Vice President for Public Policy, Center for Democracy & Technology
- Albert Gidari Jr., Partner, Perkins Coie, LLP
- Orin S. Kerr, Professor of Law, George Washington University Law School
- Annmarie Levins, Associate General Counsel, Microsoft Corporation
Cases:
- U.S. v. Warshak, F.3d 266 (6th Cir. 2010) — held that law enforcement must have a warrant to obtain emails stored by email providers and that a provision of ECPA that allows law enforcement to use a mere subpoena to access email more than 180 days old is unconstitutional.
- In Re Application of the U.S., (3rd Cir. 2010) — held that judges have discretion to require the government to obtain a warrant to access stored location information.
- U.S. v. Jones, (Supreme Court, 2012) — held that the use of a GPS device to track an automobile over a prolonged period of time is a search under the Fourth Amendment, whch normally requires a warrant issued by a judge.
Text of the current law:
The Electronic Communications Privacy Act of 1986 is codified primarily in three chapters of Title 18 of the US Code:
- Chapter 119, commonly called the Wiretap Act.
- Chapter 121, commonly called the Stored Communications Act.
- Chapter 206, regulating pen registers and trap and trace devices.
The recommendations of Digital Due Process mainly focus on the Stored Communications Act.
Other Documents:
Legal analysis of the DDP recommendations by Becky Burr, WilmerHale. March 2010.
- Digital Due Process’ Comments to NTIA in the Matter of Information Privacy and Innovation in the Internet Economy. June 14, 2010.
The revised ECPA as favorably reported by the Senate Judiciary Committee on April 25, 2013.