OPINION:
There was a great deal of whining about the lack of bipartisanship in Washington last Congress.
With the two parties trying to move in opposite directions on key issues, this is understandable. In fact, commendable. Most calls for bipartisanship are veiled demands for surrender. Still there are often important, if overlooked, issues that offer a real opportunity for left-right cooperation without anyone checking their principles or common sense at the door.
The Fourth Amendment — the one that is supposed to keep the government out of your mail and outside your door — is one area that does unite grown-ups of the left and right, unless you are a civil regulatory agency, like the Securities and Exchange Commission.
The Electronic Communications Privacy Act (ECPA), passed in 1986, was intended to extend Fourth Amendment protections to the digital space. For its time, it was a forward-looking policy, but prophesying is hard enough for a soothsayer, let alone a politician.
As technology evolved, civil agencies — who cannot serve warrants — discovered they could use the ECPA to subpoena service providers rather than account holders. That way, the civil investigation could get all of the information it wanted without the account holder ever knowing their privacy had been breached.
The Electronic Communications Privacy Act intentions were good, but it is clear the act must be updated to reinforce the Fourth Amendment, not weaken it online. Democratic Sen. Pat Leahy of Vermont, an original author of the ECPA, has been working with Republican Sen. Mike Lee of Utah to pass the ECPA Amendments Act in the Senate, and Republican Rep. Kevin Yoder of Kansas and Democratic Rep. Jared Polis of Colorado introduced the companion Email Privacy Act in the House.
These bills would update the ECPA to clarify that — except in emergencies or under other existing exceptions — the government must obtain a warrant in order to compel a service provider to disclose the content of emails, texts or other private material stored by the service providers on behalf of their users.
Updating our electronic privacy laws has enormous support both popularly and legislatively.
In terms of popular support, more than 100 privacy and consumer groups, companies and trade associations have joined the Digital Due Process Coalition, which supports ECPA reform. As of November 2013, more than 100,000 Americans signed a White House Petition requesting ECPA reform; it has yet to be acknowledged. Meanwhile, polling in 2014 showed that voters are concerned about government intrusion into digital file cabinets; 84 percent of voters felt it was time to update the ECPA, according to Nationwide Vox Populi.
On the legislative side, last Congress, 272 members of the House co-sponsored the Email Privacy Act to update the ECPA, but this bill never made it to the House floor for a vote. Updates to the act were also considered and adopted by voice vote in the Senate Judiciary Committee, but that bill did not make it to the floor for a vote, either (not many bills have been voted on in the Senate for a long time, though).
With all this bipartisan support, it is hard to believe that reform efforts have languished at the end of the Obama administration’s to-do list.
This Congress will be different. We will finally see the reforms needed to establish Fourth Amendment protections online.
On Jan. 22, proponents of ECPA reform sent a letter to both the House and Senate Judiciary Committees, including signatories such as Snapchat, the U.S. Chamber of Commerce, Cisco, Hewlett-Packard, LinkedIn, Apple, Google, Oracle, DropBox and Tumblr. All expressed their support for reintroduction of the ECPA Amendments Act and the Email Privacy Act, without changes.
Because of all of its benefits, there is an extraordinary consensus around ECPA reform — one unmatched by any other technology and privacy issue. Successful passage of ECPA reform would send a powerful message — Congress can act swiftly on crucial widely supported bipartisan legislation. Failure to enact reform would send an equally powerful message — that privacy protections are lacking in law enforcement access to user information and that constitutional values are imperiled in a digital world.
• Grover Norquist is president of Americans for Tax Reform.
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