Two years ago, the Niskanen Center joined the Digital Due Process coalition to advocate for reforms that would apply due process protections, as guaranteed under the Fourth Amendment, to digital content stored online. As we noted at the time, “[i]n an age of ubiquitous digital communications, there is no reason [that] the conversations we have in cyberspace should be any less protected by the basic constitutional protections afforded our physical ‘papers and effects.’” Now that Sens. Mike Lee (R-UT) and Patrick Leahy (D-VT) have introduced the ECPA Modernization Act of 2017, Congress is once again given the chance to update the more-than-30-year-old Electronic Communications Privacy Act to ensure that the Fourth Amendment applies to cyberspace much as it does in the physical world.
This is legislation that people from across the traditional left-right divide should be able to support. In fact, both sides of the aisle in the House of Representatives have already voted twice to support it. When the Email Privacy Act passed the House last year, it did so with unanimous support. In February 2017, it passed again—also unanimously. But there have been some questions in the Senate over whether warrant protections for digital data could stymie law enforcement and prosecutors in situations that require immediate action. Fortunately, those questions already have answers that are built into the existing law.
Under 18 U.S.C. § 2702(b)(8), an online service provider is already permitted to “divulge the contents of a communication” to the government “if that provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.” The ECPA Modernization Act retains that good faith exception, allowing the government to request emergency exemptions from a warrant requirement.
It also permits the government to argue against a notice of the warrants being served if that notification would result in physical harm, endangering an individual’s safety, flight from prosecution, tampering with (or destroying) evidence, intimidation of witnesses, or other incidents that might jeopardize an ongoing investigation.
The bill would also impose a warrant requirement for tracking real-time geolocation data. That provision is essential in an era in which most of us are carrying or using devices that track our location to some degree. But the bill expressly would allow that, in emergency situations, government can acquire such location-based information under less-stringent requirements. It also provides a warrant exemption if the government has “lawful consent of the owner or authorized user” or if the information already has been knowingly communicated “in a manner that is readily accessible to the general public.”
A warrant requirement for the content of our digital data makes sense in an age increasingly defined by our online interactions. As Justice Louis Brandeis noted in his dissent in Olmstead v. United States: “To protect [the right to be let alone], every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” That right ought to cover not only the “papers and effects” of the physical world, but the digital as well.
The ECPA Modernization Act would underscore those Fourth Amendment rights for the digital age, and it would ensure constitutional protections continue to keep pace with the rapidly evolving pace of technological change. We applaud Sens. Lee and Leahy for their staunch commitment to defending the digital rights of all Americans, and hope to see broad bipartisan support for this bill.
Ryan Hagemann is the Director of Technology Policy at the Niskanen Center