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Electronic Communications Privacy Act of 2011

Sen. Patrick Leahy (VT-Dem) introduced legislation to amend the Electronic Communications Privacy Act (ECPA), which he authored in 1986 to protect the privacy of electronic communications.  While portions of ECPA have been amended in the intervening years, Congress has not enacted comprehensive reforms since the law was enacted in 1986.  Advancements in communication technologies, including smartphones and social networking sites, have outpaced the privacy protections included in the law.  This legislation is intended  “to fill gaps in existing law and update the law to reflect how American consumers and businesses, and federal, state and local law enforcement utilize electronic communications technologies today,” said Leahy.

The bill also includes a provision to enhance the cybersecurity of U.S. computer networks, by allowing service providers to voluntarily disclose content to the government that is pertinent to addressing a cyber-attack involving their computer network. This provision includes important reporting requirements to protect privacy and civil liberties.  In addition, the legislation improves law enforcement tools, including a provision to allow the government to temporarily delay notification of its access of stored electronic communications, if notification would endanger national security. 

As the legislation was being introduced, the Brookings Institution hosted a Judicial Issues Forum that convened key stakeholders in the debate to reform ECPA.  The panel, comprised of representatives from civil liberties groups, industry, and the government, debated issues as to how technology has outpaced policy since the 1986 Act, and the confused climate of enforcement and judicial decisions that has resulted.  The questions debated included:

  • How much evidence must the government have before it can access emails of suspects?
  • Should the standard of evidence differ if the emails are stored virtually in a cloud file system, rather than on a hard drive?
  • How much evidence is required before law enforcement can use suspects’ cell phone data to track their locations over time?
  • Should the government have to go to a judge to get a court order for such information, or should it be able to do so with a subpoena?
  • Is the ECPA statute inevitably complex or needlessly complex?

While the panelists' views varied on the complexity of the statute as well as how much latitude the reach of the government should have in law enforcement investigations both prospectively and retrospectively, all agreed that ECPA needed updating to address coherently and consistently the evolving technology sphere particularly in regard to location data.

A copy of the text of the ECPA bill can be viewed at:

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