In May 2011, Senator Patrick Leahy (D-VT) unveiled a plan to amend the Electronic Communications Privacy Act (ECPA), which Congress first enacted in 1986. The ECPA prescribes the circumstances under which government entities can access an individual's e-mail, wireless communications (including SMS text messages) and cell site location information (CSLI), which law enforcement entities can use to pinpoint a suspect's location.
As written, the statute does not require the government to obtain a warrant to access e-mails and wireless communications more than 180 days old. Instead, the statute allows the government to access electronically stored information armed only with a court order. A judge may issue such an order without a showing of probable cause. Additionally, the statute allows the government to delay notifying the subject of this intrusion for up to 90 days.
Senator Leahy's amendment (S. 1011) would accomplish three goals. First, it would eliminate the distinction between e-mails more recent than 180 days old and older than 180 days old. Under the proposed scheme, the government would need to obtain a warrant to access any e-mail or wireless communication. Second, the amendment would eliminate the ECPA's delayed notice provisions and require the government to disclose the warrant to the individual within three days, but would allow the government to seek a court order to delay notice for up to 90 days upon a showing that disclosure would jeopardize an ongoing investigation or national security. Third, the amendment would require the government to obtain a warrant to access an individual's CSLI.
These amendments likely stem from recent judicial decisions challenging the validity of the ECPA. See, e.g., United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (holding that the ECPA is unconstitutional to the extent that it allows the government to obtain access to e-mails without a search warrant); see also In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Information, 2011 WL 3678934 (E.D.N.Y. Aug. 22, 2011) (finding that warrantless access of CSLI is unconstitutional).
In 2012, Congress may act on Senator Leahy's proposed amendment, but some officials in the U.S. Department of Justice oppose it. For example, Associate Deputy Attorney General James Baker has said that for Congress to require the government to obtain a warrant to access all stored e-mail content would have "collateral consequences to criminal law enforcement and the national security."
Additionally, the Supreme Court of the United States will hear an appeal from the U.S. Court of Appeals for the District of Columbia Circuit deciding the constitutionality of warrantless GPS tracking. Although not directly related to the ECPA, the decision will likely definitively determine the constitutionality of the government's use of CSLI in electronic surveillance.
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