This past weekend, California Gov. Jerry Brown vetoed legislation (SB 467) which would have would have required California law enforcement officials to get a warrant to access online communications. The current Federal statute governing the search and seizure of these records is the Electronic Communications Privacy Act, known as ECPA for short. Enacted in 1986, many commentators believe that portions of ECPA have outlived their usefulness and that the law must be changed; that was the goal of SB 467.
ECPA consists of three main parts: Title III which outlaws unauthorized wiretaps while establishing procedures for law enforcement; the Stored Communications Act which deals with government access to stored electronic communications; and procedures governing the installation and use of pen registers. It is the Stored Communications Act portion that has become the focus of reform attempts. Written at a time when only a fraction of the population was using computer networks to communicate, it permits law enforcement to obtain the contents of electronic communications without a warrant so long as they are at least 180 days old and stored on a third party computer. With the advent of remote servers, cloud computing, and other realities of the internet age, advocates have been hoping for a broad rewrite of this seemingly arcane standard.
Efforts to reform the Stored Communications Act had a fair bit of momentum in the Senate prior to the 2012 election but stalled before Congress adjourned. In March of this year, Judiciary Chairman Sen. Patrick Leahy (D-Vt) and Sen. Mike Lee (R-Ut) again introduced ECPA reform legislation to create a search warrant requirement for electronic communications stored on third party computers. The bill also requires a notice to the individual whose communications have been seized within ten days of the warrants execution. Similar legislation has been introduced in the House. Both chambers seemed poise to act, but like so many other issues in the current Congress, efforts have become stalled over budget and fiscal issues.
The proposed California law paralleled the proposed Senate legislation in many ways, but departed significantly in its notice requirement. SB 467 would have mandated that individuals receive notice of the warrant within three days, a time frame that is more compressed than the 10-days outlined in Chairman Leahy’s bill. This requirement brought out opposition within California’s law enforcement community with police and prosecutors expressing their doubts.
In his veto statement Gov. Brown gave voice to those concerns saying, “The bill, however, imposes new requirements that go beyond those required by federal law and could impede ongoing criminal investigations.”
With this veto the focus will again (once Congress solves/punts its fiscal fights) come back to the efforts of Sens. Lee and Leahy to move ECPA reform out of the Senate. With strong bipartisan backing, the question is more of when, not if, this happens.