Time for reform is now

As the debate over electronic communications privacy escalates in Congress and around the country, I testified this week before the Senate Judiciary Committee to discuss this very issue.  The hearing provided a crucial opportunity to address users’ very reasonable expectations of privacy when it comes to the content in their email accounts and on their cell phones.

Google strongly supports legislation to update the Electronic Communications Privacy Act (ECPA), which was signed into law almost thirty years ago, long before cell phones and email accounts were widely used.  The law that dominated this pre-digital era no longer makes sense: users expect, as they should, that the documents they store online have the same Fourth Amendment protections as they do when the government wants to enter the home to seize documents stored in a desk drawer.  There is no compelling policy or legalrationale for there to be different rules.  

{mosads}ECPA reform is long overdue.  As it is currently written, it allows government agencies to compel a provider to disclose the content of communications, like email and photos, without a warrant in some circumstances.  It is plainly unconstitutional, as the Sixth Circuit Federal Court of Appeals held back in 2010 in United States v. Warshak.  Google requires that law enforcement secure a warrant to compel Google to disclose content.  

Some agencies that investigate civil infractions, as opposed to violations of criminal law, have now asked Congress for new and expanded powers to compel providers to disclose content about users, as opposed to seeking such documents through users as is currently the case.  Congress should reject these efforts to expand the authority of these agencies, and should remain focused on updating the statute to be consistent with the constitutional requirements.   

It is undeniable that ECPA no longer reflects users’ reasonable expectations of privacy and no longer comports with the Fourth Amendment.  The Senate legislation, and its companion in the House, represent an overdue update to ECPA that would ensure electronic communications content is treated in a manner commensurate with other papers and effects that are protected by the Fourth Amendment.  It is long past time for Congress to pass the ECPA Amendments Act of 2015 and the Email Privacy Act.  

The time for reform is now.

Salgado is director for Law Enforcement and Information Security at Google.