[Congressional Record (Bound Edition), Volume 157 (2011), Part 11]
[Senate]
[Page 15990]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 ELECTRONIC COMMUNICATIONS PRIVACY ACT

  Mr. LEAHY. On October 21 we will celebrate the 25th anniversary of 
the enactment of the Electronic Communications Privacy Act, ECPA, one 
of the Nation's premiere privacy laws for the digital age. Since the 
ECPA was first enacted in 1986, this law has provided privacy 
protections for e-mail and other electronic communications for millions 
of Americans who communicate and transact business in cyberspace.
  Today, the many rapid advances in technology that we have witnessed 
make this key privacy law more important than ever if we are to ensure 
the right to privacy. Just in the past few months, we have witnessed 
significant data breaches involving Sony and Epsilon that impact the 
privacy of millions of American consumers. We are also learning that 
smartphones and other new mobile technologies may be using and storing 
our location and other sensitive information, posing new risks to 
privacy.
  When I led the effort to write the ECPA 25 years ago, no one could 
have contemplated these and other emerging threats to our digital 
privacy. But today, this law is significantly outdated and outpaced by 
rapid changes in technology and the changing mission of our law 
enforcement agencies after September 11. At a time in our history when 
American consumers and businesses face threats to privacy like no time 
before, we must renew the commitment to the privacy principles that 
gave birth to the ECPA a quarter century ago. That is why I am working 
to update this law to reflect the realities of our time.
  Before the end of the calendar year, the Judiciary Committee will 
consider legislation that I have drafted to update the ECPA and to 
bring this law fully into the digital age. My bill makes several 
commonsense changes to the law regarding the privacy protections 
afforded to consumers' electronic communications. Among other things, 
my bill gets rid of the so-called ``180-day rule'' and replaces this 
confusing mosaic with one clear legal standard for protection of the 
content of e-mails and other electronic communications. This bill also 
provides enhanced privacy protections for American consumers by 
expressly prohibiting service providers from disclosing customer 
content and requiring that the Government obtain a search warrant based 
on probable cause to compel the disclosure of the content of an 
individual's electronic communications.
  The ECPA Amendments Act also gives important new privacy protections 
for location information that is collected, used, or stored by service 
providers, smartphones, or other mobile technologies. To address the 
role of new technologies in the changing mission of law enforcement, my 
bill also provides important new tools to law enforcement to fight 
crime and protect cybersecurity including--clarifying the authority for 
the government to temporarily delay notice to protect the integrity of 
a law enforcement investigation and allowing a service provider to 
disclose content that is pertinent to addressing a cyberattack to the 
government to enhance cybersecurity.
  I drafted this bill with one key principle in mind--updates to the 
Electronic Communication Privacy Act must carefully balance the 
interests and needs of consumers, law enforcement, and our Nation's 
thriving technology sector. I also drafted this bill after careful 
consultation with many government and private sector stakeholders, 
including the Departments of Justice, Commerce and State, local law 
enforcement, and members of the technology and privacy communities.
  As the ECPA approaches its silver anniversary, I join the many 
privacy advocates, technology leaders, legal scholars, and other 
stakeholders who support reform of the ECPA in celebrating all that 
this law has come to symbolize about the importance of protecting 
Americans' privacy rights in cyberspace. I hope that all Members will 
join me in commemorating this important milestone anniversary and in 
supporting the effort in Congress to update this law to reflect the 
realities of the digital age.

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