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  • Ashley Baker

Bipartisan Bill Would Protect Fourth Amendment, Due Process Rights

Our privacy laws are out of date in the digital age.

Washington, D.C. -- Since the enactment of the Electronic Communications Privacy Act, we have seen more than three decades of additional technological advancement that Congress could not foresee in 1986. After many failed attempts to modernize ECPA, our digital privacy rights are left inadequately protected by a law that was designed to protect the contents of your email in 1986.

On Thursday, Senators Mike Lee (R-UT) and Patrick Leahy (D-VT) introduced legislation intended to address this problem, the ECPA Modernization Act.

"The Committee for Justice applauds Senators Lee and Leahy for this important effort to modernize the ECPA, strengthen the warrant requirements for third-party data collection, and guard the Constitutional right to due process when digital property is being searched," said Ashley Baker, director of public policy at the Committee for Justice.

"Currently, after requesting data from a service provider (such as Microsoft or Verizon), the government can delay notice to the subscriber for up to 180 days," Baker explained. "This happens when the government commands the third-party provider to keep the existence of the warrant or subpoena secret. In one of several reforms aimed at such gag order reforms, this bill reduces the maximum delay period to 90 days."

"Additionally, the proposed bill provides individuals with the remedy of suppression when information is obtained in violation of the ECPA," Baker added. "Another commendable provision in the bill calls on the FCC and GAO to study law enforcement’s use of stingray devices to do an end-run around the requirements of the warrant (or subpoena) process."

"Much of the doctrine of the Fourth Amendment relies on definitions that are particularly ill-equipped for dealing with challenges in the era of cloud computing," said Baker. "While we wait for the Supreme Court to weigh in on the third-party doctrine in United States v. Carpenter, Congress should safeguard the Fourth Amendment and due process rights of Americans."



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