On Tuesday Congress considered two revisions to the Electronic Communications Privacy Act of 1986 that took opposing approaches to the privacy of different types of electronic communications.
In the Senate, liberal Senator Patrick Leahy (D-VT) joined forces with Tea Party favorite Senator Mike Lee (R-UT) to introduce The Electronic Communications Privacy Act Amendment of 2013, a bill that would require law enforcement to secure search warrants in order to require Internet service providers to produce copies of any emails. Current law, established in the original 1986 Electronic Communications Privacy Act, allows law enforcement to obtain on request copies of any email older than 180 days without a warrant. Emails younger than 180 days require a warrant.
In the House, however, in testimony before the Crime, Terrorism, Homeland Security, and Investigations Subcommittee, Richard Littlehale, a law enforcement officer with the state of Tennessee, asked Congress to "consider" that any updates to the original Electronic Communication Privacy Act of 1986 include a provision requiring wireless phone and text message providers to retain the data for all SMS (text) messages sent by their customers. As CNET reported, "Littlehale also proposed that any attempt to update ECPA include revised 'emergency' language that would allow police to demand records from providers without search warrants in some cases."
Littlehale articulated a sentiment supported by many members of the law enforcement community who have already gone on the record in favor of similar proposals. In December, Chuck DeWitt of the Major Cities Chiefs Police Association said "all such [text message] records should be retained [by wireless providers] for two years." Other law enforcement agencies supporting text message data retention proposals include the National District Attorneys' Association and the National Sheriffs' Association.
Though Littlehale's testimony qualified the text message data retention requirement with language that simply requested Congress "consider" adding this provision to any updates to the Electronic Communications Privacy Act, it is clear that many in law enforcement want much more authority. Specifically, they want Congress not only to require wireless and text message service providers to retain records of all confidential text message communications by their customers, but they also want Congress to grant law enforcement agencies the authority to demand that wireless and text message providers turn over these confidential records to them without securing a search warrant.
The ACLU objects strenuously to such invasions of personal privacy. Legislative counsel Chris Calabese recently said "[w]e would oppose any mandatory data retention mandate as part of ECPA reform...[such a proposal is] a different kettle of fish--it doesn't belong in this discussion." He later addressed Littlehale's proposal that access to this data should be enhanced under emergency situations, saying that "[e]mergency can't be a magic word. Emergencies have to be documented subsequently to a judge the same way we would with a wiretap."
The Electronic Frontier Foundation agrees with the ACLU. Staff attorney Hanni Fakhoury recently stated that "[t]hese data retention policies serve one purpose: to require companies to keep databases on their customers so law enforcement can fish for evidence. And this would seem to be done against the wishes of the providers, presumably, since...some of the providers don't keep SMS [text] messages at all."
Senator Leahy has a long record of involvement in legislation related to the Internet. He was an author of the original 1986 Electronic Communications Privacy Act. According to Leahy, "[p]rivacy laws written in an analog era are no longer suited for privacy threats we face in a digital world. Three decades later, we must update this law to reflect new privacy concerns and new technological realities, so that our Federal privacy laws keep pace with American innovation and the changing mission of our law enforcement agencies."
Congress may well approve proposals to increase the privacy of confidential email messages. There appears to be a growing consensus in favor of Leahy and Lee's Senate proposal to require search warrants for law enforcement to obtain any email messages stored by Internet service providers, regardless of their age.
It is unclear, however, if law enforcement will succeed with their proposals to obtain confidential text messages from wireless and text message providers, in some cases without a warrant. At present, from a political perspective, law enforcement's vigorous support of proposals to limit text message privacy appears to be balanced by equally vigorous opposition from civil liberty organizations and private individuals.
Michael Patrick Leahy and Senator Patrick Leahy (D-VT) are distant cousins.