[Congressional Record Volume 161, Number 19 (Wednesday, February 4, 2015)]
[Senate]
[Pages S773-S775]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEE (for himself, Mr. Leahy, Mr. Cornyn, Mr. Moran, Mr. 
        Gardner, Mrs. Shaheen, Mr. Merkley, and Mr. Blumenthal):
  S. 356. A bill to improve the provisions relating to the privacy of 
electronic communications; to the Committee on the Judiciary.
  Mr. LEE. Mr. President, the Electronic Communications Privacy Act was 
first enacted in 1986. I would ask my colleagues, what were you doing 
in 1986? Mr. President, 1986 was a long time ago. In 1986 I was in the 
ninth grade. This was an age when not everyone had a personal computer. 
My family didn't have a computer. Most of the people I knew who had a 
computer had something like the Commodore VIC-20, which was a very 
small computer with very little processing power compared to what we 
have today. But this law, the Electronic Communications Privacy Act--or 
ECPA, as it is sometimes known--was and still is an important law with 
an increasingly important objective; that is, to ensure that government 
agencies respect the Fourth Amendment in accessing an individual's 
electronic communications.
  In the nearly three decades since ECPA became law, technology has 
advanced rapidly, dramatically, far beyond the capacity of this 
particular law, ECPA, to keep up. The prevalence of email and the low 
cost of electronic data storage have made what were once robust 
protections vastly insufficient to ensure that citizens' rights are 
protected with respect to their electronic communications, such as 
email.
  There is no reason we should still be operating under a law written 
in the analog age when we are living in a digital world. This is a 
little bit like operating with a DOS-based operating system in the age 
of much more sophisticated software systems that help us interact 
relatively seamlessly with our computers. That is why Senator Leahy and 
I have come together to craft this truly bipartisan piece of 
legislation which would modernize ECPA and bring constitutional 
protections against worthless searches and seizures into harmony with 
the technological realities of the 21st century.
  The Lee-Leahy ECPA Amendments Act of 2015 would prohibit electronic 
communications or remote computing service providers--such as Gmail or 
Facebook or Twitter, for example--from voluntarily disclosing the 
contents of customer emails or other communications. It eliminates the 
ambiguous and outdated 180-day rule that some government agencies 
believe grants them warrantless access to the content of older emails. 
That is any emails older than the very young age of 180 days old. 
Instead, all requests for the content of electronic communications 
would require a search warrant--a search warrant required by the Fourth 
Amendment, a search warrant based on probable cause--and law 
enforcement agencies would be required to notify within 10 days any 
persons whose email accounts were searched, subject to some logical and 
narrow exceptions, of course.
  This legislation is also carefully crafted so that it would not 
impede the ability of law enforcement agencies to conduct legitimate 
investigative activities consistent with the Fourth Amendment.

[[Page S774]]

  I am pleased to say that our bill enjoys very broad support from the 
technology industry, from privacy advocates, constitutional scholars, 
and policy groups on both ends of the ideological spectrum in America.
  The Lee-Leahy ECPA Amendments Act of 2015 is truly bipartisan in 
nature. The Senate bill, in addition to Senators Leahy and myself as 
the principal sponsors, also has six additional cosponsors. We have 
Republican Senators Cornyn, Moran, and Gardner and Democratic Senators 
Shaheen, Merkley, and Blumenthal. I hope and expect that we will have a 
lot of additional Senators of both political parties who will join us 
in this effort. The House version of this bill has 228 additional 
cosponsors--a very critical majority.
  By working together as a Democrat from Vermont and a Republican from 
Utah, we hope all Senators will join with us to pass this meaningful, 
bipartisan legislation that would benefit all Americans. Congress 
should pass ECPA reform this year, and President Obama should sign 
these important privacy reforms into law.
  I will end this discussion as I began. What were you doing in 1986? 
As it relates to your interaction with the digital world with 
computers, I would imagine that even though your life might be in many 
respects similar to what it was in 1986, it is very different in the 
way you interact with computers, with technology, with the online 
world, which basically no one was even aware of in 1986. Since 1986 the 
world has changed. We need to change the world to keep up with the 
times. We need to change the law to hold in place those protections 
that have been in our Constitution since 1791 to make sure the privacy 
rights of the American people are respected.
  I encourage each of my colleagues to support this bill
  Mr. LEAHY. Mr. President, I want to talk about privacy because 
privacy is not a partisan issue. It never has been, and never should 
be. Remember, 30 years ago I was in the minority. The Republicans were 
in the majority and controlled the Senate. It was then that I worked 
with my colleagues and led the effort to write the Electronic 
Communications Privacy Act, ECPA.
  It required a lot of education because back then, electronic mail was 
an emerging technology. The World Wide Web was unimaginable. Electronic 
data storage was astronomically expensive. No one could have envisioned 
the way mobile technologies would transform our lives. Yet fortunately 
many of us in Congress had the foresight to anticipate that these new 
electronic communications would also need privacy protections.
  That was 30 years ago. Look at what has changed since then. Now three 
decades later, that law is out of date. So today the Senator from Utah, 
Mr. Lee, and I are reintroducing the Electronic Communications Privacy 
Act Amendments Act of 2015. We want to bring this law into the 21st 
century. Our legislation is very straightforward. It ensures that the 
private information that we Americans electronically store in the cloud 
gets the same protections as the private information we Americans 
physically store at home. As it did in 1986, I hope the Senate will 
come together on a bipartisan basis to support these commonsense 
protections.
  All of us have an expectation that the things we store in our house 
are private. If law enforcement wants access to them, they have to get 
the proper search warrants. Today, there seems to be an idea that if 
they are stored electronically, these rules should not apply.
  I believe they should.
  The bill Senator Lee and I introduced today protects Americans' 
digital privacy--in their emails and all the other files and 
photographs they store in the cloud. It promotes cloud computing and 
other new technologies by building consumer trust. And it also provides 
law enforcement agencies with the tools they need to ensure public 
safety.
  I would remind my colleagues that several years ago the U.S. Circuit 
Court of Appeals for the Sixth Circuit found that email was fully 
protected by the Fourth Amendment. It said that ``the Fourth Amendment 
must keep pace with the inexorable march of technological progress, or 
its guarantees will wither and perish.'' This bill takes up that 
challenge.
  Obviously we have technologies today that nobody would have dreamed 
of just a couple of generations ago. But we have a Constitution that 
has protected this country for well over 200 years, and we hope it will 
protect it for hundreds of years into the future. We need to make sure 
our laws keep up with the protections we Americans expect from our 
Constitution.
  First and most importantly, the bill enshrines in statute the 
fundamental Fourth Amendment warrant requirement for email, texts, and 
other electronic data. It requires that the government have a criminal 
search warrant based on possible cause to obtain the stored content of 
Americans' email and other electronic communications from third-party 
providers. This ensures that email communications have the same 
protections as phone calls and private documents stored in your home.
  However, the bill's warrant requirement contains an important 
exception to address emergency circumstances. It explicitly states that 
it does not affect current authorities under the Wiretap Act or the 
Foreign Intelligence Surveillance Act. And it ensures that law 
enforcement can continue to investigate corporate wrong-doing by using 
grand jury subpoenas to obtain emails directly from corporate entities 
when held on their internal systems.
  The second major component of the bill requires law enforcement 
agencies to promptly notify individuals when the government has 
obtained their emails through their service providers, but permits a 
delay of that notice to protect the integrity of ongoing 
investigations--no different from what we do in other law enforcement 
matters. The bill would also require service providers to notify the 
government three days before they inform a customer that the provider 
disclosed their information to the government.
  This is not a Republican or Democratic issue, nor is it liberal or 
conservative. In fact, Senator Lee and I would note that we have a 
broad coalition of more than 50 privacy, civil liberties, civil rights, 
and technology industry groups and leaders from across the political 
spectrum who have endorsed this reform effort. Support spans from the 
Heritage Foundation and Americans for Tax Reform, to the Center for 
Democracy and Technology and the ACLU.
  Mr. President, I ask unanimous consent to have printed in the Record 
the January 22, 2015, coalition letter in support of the bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 January 22, 2015.
     Hon. Charles Grassley,
     Chairman,
     Senate Judiciary Committee.
     Hon. Patrick J. Leahy,
     Ranking Member,
     Senate Judiciary Committee.
       Dear Chairman Grassley and Ranking Member Leahy: We, the 
     undersigned companies and organizations, are writing to urge 
     speedy consideration of Sen. Leahy's and Sen. Lee's ECPA 
     Amendments Act that we expect will be introduced in the 
     coming weeks. The bill would update the Electronic 
     Communications Privacy Act (ECPA) to provide stronger 
     protection to sensitive personal and proprietary 
     communications stored in ``the cloud.'' The legislation was 
     considered and adopted by a voice vote in the Committee in 
     the 113th Congress.
       ECPA, which sets standards for government access to private 
     communications, is critically important to businesses, 
     government investigators and ordinary citizens. Though the 
     law was forward-looking when enacted in 1986, technology has 
     advanced dramatically and ECPA has been outpaced. Courts have 
     issued inconsistent interpretations of the law, creating 
     uncertainty for service providers, for law enforcement 
     agencies, and for the hundreds of millions of Americans who 
     use the Internet in their personal and professional lives. 
     Moreover, the Sixth Circuit Court of Appeals in US v. Warshak 
     has held that a provision of ECPA allowing the government to 
     obtain a person's email without a warrant is 
     unconstitutional.
       The ECPA Amendments Act would update ECPA in one key 
     respect, making it clear 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 provider on behalf of its users.
       This standard would provide greater privacy protections and 
     create a more level playing field for technology. It would 
     cure the constitutional defect identified by the Sixth 
     Circuit It would allow law enforcement officials to obtain 
     electronic communications in all appropriate cases while 
     protecting

[[Page S775]]

     Americans' constitutional rights. Notably, the Department of 
     Justice and FBI already follow the warrant-for-content rule. 
     It would provide certainty for American businesses developing 
     innovative new services and competing in a global 
     marketplace. It would implement a core principle supported by 
     Digital Due Process, www.digitaldueprocess.org, a broad 
     coalition of companies, privacy groups, think tanks, 
     academics and other groups.-
       This legislation has seemingly been held up by only one 
     issue--an effort to allow civil regulators to demand, without 
     a warrant, the content of customer documents and 
     communications directly from third party service providers. 
     This should not be permitted. Such warrantless access would 
     expand government power; government regulators currently 
     cannot compel service providers to disclose their customers' 
     communications. It would prejudice the innovative services 
     that all stakeholders support, and would create one procedure 
     for data stored locally and a different one for data stored 
     in the cloud.
       Because of all its benefits, there is an extraordinary 
     consensus around ECPA reform--one unmatched by any other 
     technology and privacy issue. Successful passage of ECPA 
     reform sends a powerful message--Congress can act swiftly on 
     crucial, widely supported, bipartisan legislation. Failure to 
     enact reform sends 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.
       For all these reasons, we strongly urge all members of the 
     Senate Judiciary Committee to support the ECPA Amendments 
     Act.
           Sincerely,
       ACT--The App Association, Adobe, Amazon, American 
     Association of Law Libraries, American Booksellers for Free 
     Expression, American Civil Liberties Union, American Library 
     Association, Americans for Tax Reform and Digital Liberty, 
     AOL, Apple, Association of Research Libraries, Automattic, 
     Autonet Mobile, Brennan Center for Justice, BSA |, The 
     Software Alliance, Center for Financial Privacy and Human 
     Rights, Center for Democracy & Technology, Center for 
     National Security Studies, Cisco, Competitive Enterprise 
     Institute, Computer & Communications Industry Association, 
     Consumer Action, Council for Citizens Against Government 
     Waste, Data Foundry, Deluxe Corporation, Demand Progress, 
     Direct Marketing Association, Discovery Institute, 
     Distributed Computing Industry Association (DCIA).
       Dropbox, eBay, Electronic Frontier Foundation, Engine, 
     Evernote, Facebook, First Amendment Coalition, Foursquare, 
     FreedomWorks, Future of Privacy Forum, Gen Opp, Golden Frog, 
     Google, Hewlett-Packard, Information Technology Industry 
     Council (ITI), Internet Association, Internet Infrastructure 
     Coalition (I2Coalition), Intuit, Less Government, Liberty 
     Coalition, LinkedIn, NetChoice, New America's Open Technology 
     Institute, Newspaper Association of America, Oracle, 
     Personal, R Street, ServInt, SIIA: Software & Information 
     Industry Association, Snapchat, Sonic, Taxpayers Protection 
     Alliance, TechFreedom, TechNet, The Constitution Project, The 
     Federation of Genealogical Societies, Tumblr, Twitter, U.S. 
     Chamber of Commerce, Venture Politics, Yahoo.

  Mr. LEAHY. I am also pleased that Senators Shaheen, Moran, Cornyn, 
Merkley, Gardner, and Blumenthal have joined this effort with Senator 
Lee and I. I commend them because we do have an opportunity this year 
to make progress on bipartisan, commonsense legislation to protect the 
privacy of Americans' email and update our laws to keep pace with 
technology. And I also congratulate our House partners, Representatives 
Yoder and Polis, who are introducing this legislation today in the 
House of Representatives with 228 cosponsors from both parties.
  In the last Congress, the Senate Judiciary Committee unanimously 
supported this bill, Republicans and Democrats alike. We have continued 
the hard work of building a broad bipartisan coalition in support of 
this bill. Now is the time to act swiftly to bring our privacy 
protections into the digital age.
  I will continue to work with Senator Lee, Senator Cornyn, Senator 
Moran, Senator Shaheen, Senator Merkley, Senator Gardner, and Senator 
Blumenthal on this issue because while I am proud to have them as 
cosponsors, I am also proud that we are doing the right thing
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