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One Small Step by the Senate Judiciary Committee, One Giant Leap for Online Privacy

Sandra Fulton,
ACLU Washington Legislative Office
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April 26, 2013

Yesterday marked a major step for Americans taking control of their privacy online.

In a rare demonstration of bipartisan support, the Senate Judiciary Committee voted overwhelmingly to update the main statute protecting online privacy, the Electronic Communications Privacy Act (ECPA), and thus bring our privacy rights in line with the 21st century. In addition to the work of the committee members, this vote is the result of a huge effort by advocates that span the political spectrum.

The original ECPA was written in 1986, before the World Wide Web was even invented, and has been largely untouched since. While the law intended to provide strong privacy protections, Congress could not have foreseen the evolution of the Internet, and now huge loopholes exist. The result has been a patchwork of legal interpretations by companies, police, and conflicted courts, all failing to offer clarity.

These loopholes are particularly problematic with respect to the authority the government claims to access Americans’ online communications. Law enforcement investigations into our online lives can reveal incredibly personal data. It can uncover our emails, personal contacts, journal entries, photo albums, financial or health information – the list is endless. An outdated ECPA leaves all of this information vulnerable. The update supported by the Judiciary Committee would settle the debate by requiring law enforcement to get a warrant approved by a judge in order to access any online communications.

While you might expect to see organizations like the ACLU, the Center for Democracy and Technology, the Electronic Frontier Foundation, and the Electronic Privacy Center supporting online privacy, the ECPA update saw huge support from groups on the left, right, and everywhere in between. After the vote, messages of support poured in from libertarians, consumer groups, privacy advocates, civil rights organizations, groups like the Americans for Tax Reform and The Heritage Foundation, librarians, tech policy groups, media trade groups, Internet industry organizations, and more. Such a robust coalition of “strange bedfellows” is rare in Washington, and it was this diversity that convinced the powerful Senate Judiciary Committee that the time had come for an update.

The framers of our Constitution guaranteed our “persons, houses, papers, and effects” would be protected by unwarranted government searches. We should not stray from our fundamental privacy protections simply because these things are now kept in the cloud instead of in filing cabinets. Senator Leahy and the Judiciary Committee deserve a hand for their work on ECPA, and we call on them to keep the momentum going until we see the bill on the Senate floor.

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