A Summary of the Electronic Communications Privacy Act (ECPA)

The Electronic Communications Privacy Act of 1986, or ECPA, is a federal law that controls access to private information stored on the Internet – including emails, private photos, or corporate data. ECPA authorizes government officials, prosecutors, and FBI agents to issue subpoenas (summons letters not approved by a judge) that can force third parties such as email service providers to turn over their customers’ privately stored data.

ECPA in Today’s World

When it passed in 1986, ECPA was intended to extend Fourth Amendment protections to online communications. However, this was long before most Americans had access to a home computer, before email was widely used, and before the invention of Facebook, Twitter, and other social media platforms.

Despite tremendous advancements in technology over the last three decades, ECPA legislation remains virtually the same. It does not, for example, take account of the development of the Internet “cloud,” which enables the centralized storage of vast amounts of private and proprietary information by individuals and companies. As a result, all of the information that you store online – emails, photos, and documents – is subject to warrantless seizure.

Proposed Changes

Electronic Communications Privacy Act reforms would require a warrant based on the traditional standard of probable cause – the standard required to search a home – before the government could access the contents of a person or company’s email and other electronic communications. This standard is what the law already requires to access digital communications that are less than 180 days old, or to obtain the information sent by postal mail or transmitted over the telephone.

Why Reform?

Reforming ECPA will bring the protection of Americans’ Fourth Amendment rights into the 21st century. It will increase transparency within a legal landscape that is currently murky, and thus decrease the burden of potential legal costs.
Other benefits to ECPA reform include:

  • The ability for law enforcement officials to obtain electronic communications in all appropriate cases (such as terrorism or child pornography cases), while still protecting the constitutional rights of its citizens.
  • Increasing U.S. competitiveness with regard to cloud computing. ECPA currently allows official access to data without a warrant or notice to the owner of the data, potentially discouraging businesses and individuals from using U.S. cloud services.
  • Relief for small businesses who do not have the time or legal resources needed to comply with ECPA’s current complexities and ambiguities.