[Congressional Record Volume 163, Number 127 (Thursday, July 27, 2017)]
[Senate]
[Page S4427]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  By Mr. LEE (for himself, Mr. Leahy, Mr. Heller, Mrs. Shaheen, Mr. 
Daines, Mr. Blumenthal, Mr. Gardner, and Mr. Franken):
  S. 1654. A bill to amend title 18, United States Code, to update the 
privacy protections for electronic communications information that is 
stored by third-party service providers in order to protect consumer 
privacy interests while meeting law enforcement needs, and for other 
purposes; to the Committee on the Judiciary.
  Mr. Leahy. Six years ago, Senator Lee and I first joined together to 
reform our outdated digital privacy laws. We recognized that our 
Nation's privacy rules failed to account for how we live our lives 
today and provided little protection for Americans' electronic 
information.
  Most Americans are shocked to learn that a law dating back to the 
Reagan administration governs when the government can read their emails 
and texts, view their photos, obtain their location information, and 
even inspect their Internet browsing history. Thirty-one years ago, I 
led efforts to write the Electronic Communications Privacy Act (ECPA). 
At the time, computers were an emerging technology and there was little 
understanding of the Internet, let alone cloud computing. ECPA was 
significant and forward-looking legislation in 1986, but it was not 
intended to get us through 30 years of technological innovations. 
Modern technology and digital communications have transformed our 
society. It is past time for Congress to catch up.
  ECPA no longer makes any sense in our digital world. When Senator Lee 
and I first set out to modernize the statute, we focused on one 
critical reform: enacting a clear, uniform rule that the government 
must obtain a warrant supported by probable cause whenever it seeks the 
content of our emails, texts, photos, and other electronic documents 
stored in the cloud. This is what the Constitution requires; and this 
is what Vermonters, Utahns, and Americans across the Country expect.
  But even in the six years since we first introduced legislation to 
reform ECPA, it has become increasingly clear that broader reforms are 
necessary to ensure that the statute adequately addresses the privacy 
and technological challenges of the modern world. When the U.S. Court 
of Appeals for the Sixth Circuit held in 2010 that email was fully 
protected by the Fourth Amendment, the court cautioned that ``the 
Fourth Amendment must keep pace with the inexorable march of 
technological progress, or its guarantees will wither and perish.'' The 
bill we introduce today would ensure our laws keep pace.
  The ECPA Modernization Act of 2017 introduces a broad set of reforms 
to our digital privacy statutes. Like legislation we introduced in 
previous Congresses, this bill would create a foundational requirement 
that the government obtain a warrant when it seeks the content of our 
electronic communications from third-party service providers. The bill 
also goes further by addressing the unique privacy concerns associated 
with Americans' location information. Following the example set by 
States like Vermont, Utah, and California, our bill would require that 
the government obtain a warrant when it seeks stored or real-time 
location information from third-party service providers, or uses IMSI-
catchers or stingrays to get location data from individuals' own cell 
phones.
  The ECPA Modernization Act additionally would require law enforcement 
to notify individuals when their communications or location information 
is obtained from third-party service providers. The bill would also add 
new privacy protections related to government requests for customer 
records and metadata; a suppression remedy for illegally obtained 
electronic data; and reform the pen register and trap and trace device 
statutes to bring them in line with other laws.
  Senator Lee and I are proud to introduce this bill with the support 
of a broad range of stakeholders, including the Center for Democracy & 
Technology, the ACLU, the Constitution Project, New America's Open 
Technology Institute, the Electronic Frontier Foundation, the American 
Library Association, the R Street Institute, TechFreedom, FreedomWorks, 
Google, Engine, BSA/The Software Alliance, and many others.
  Today Senator Lee and I are also introducing the Email Privacy Act, 
companion legislation to the bill introduced in the House of 
Representatives by Congressmen Yoder and Polis. The Email Privacy Act 
passed the House by voice vote earlier this year, and received an 
overwhelming 419 to 0 vote last congress. I commend Representatives 
Yoder and Polis for their efforts, and also commend House Judiciary 
Committee Chairman Goodlatte and Ranking Member Conyers for reaching a 
historic compromise that led to unanimous support for this bill in the 
House.
  When the House passed the Email Privacy Act last year, I was hopeful 
that the Senate would follow suit to protect Americans' digital privacy 
and swiftly pass the bill so that it would be enacted into law. I was 
disappointed when instead of working in a bipartisan fashion, certain 
Republicans on the Senate Judiciary Committee threatened to use it as a 
vehicle to push poison pill amendments on controversial National 
security matters, effectively killing the bill for their own political 
purposes.
  The Email Privacy Act is a good bill that is unanimously supported by 
the House of Representatives. That legislation does not include all the 
reforms that I believe are necessary to bring our digital privacy laws 
into the modern age, but it takes a significant step toward ensuring 
that ECPA complies with the Fourth Amendment by requiring a warrant 
whenever the government seeks the contents of Americans' emails and 
electronic communication. I have worked for years to see this critical 
reform implemented into law, and I will take every opportunity to see 
that it reaches the President's desk.
  But make no mistake: I believe our work must not stop there. 
Americans deserve Fourth Amendment protections for their location 
information, notice when law enforcement obtains their content or 
location data, and strong protections governing the acquisition of 
metadata and records. I will keep fighting for the protections we have 
now set forth in the ECPA Modernization Act. I will keep pushing the 
Senate to advance legislation that keeps pace with Americans' 
expectations of privacy. The American people expect these protections, 
and they deserve them.
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