Statements on Introduced Bills and Joint Resolutions

Floor Speech

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Mr. LEE. Mr. President, the Electronic Communications Privacy Act was first enacted in 1986. I would ask my colleagues, what were you doing in 1986? Mr. President, 1986 was a long time ago. In 1986 I was in the ninth grade. This was an age when not everyone had a personal computer. My family didn't have a computer. Most of the people I knew who had a computer had something like the Commodore VIC-20, which was a very small computer with very little processing power compared to what we have today. But this law, the Electronic Communications Privacy Act--or ECPA, as it is sometimes known--was and still is an important law with an increasingly important objective; that is, to ensure that government agencies respect the Fourth Amendment in accessing an individual's electronic communications.

In the nearly three decades since ECPA became law, technology has advanced rapidly, dramatically, far beyond the capacity of this particular law, ECPA, to keep up. The prevalence of email and the low cost of electronic data storage have made what were once robust protections vastly insufficient to ensure that citizens' rights are protected with respect to their electronic communications, such as email.

There is no reason we should still be operating under a law written in the analog age when we are living in a digital world. This is a little bit like operating with a DOS-based operating system in the age of much more sophisticated software systems that help us interact relatively seamlessly with our computers. That is why Senator Leahy and I have come together to craft this truly bipartisan piece of legislation which would modernize ECPA and bring constitutional protections against worthless searches and seizures into harmony with the technological realities of the 21st century.

The Lee-Leahy ECPA Amendments Act of 2015 would prohibit electronic communications or remote computing service providers--such as Gmail or Facebook or Twitter, for example--from voluntarily disclosing the contents of customer emails or other communications. It eliminates the ambiguous and outdated 180-day rule that some government agencies believe grants them warrantless access to the content of older emails. That is any emails older than the very young age of 180 days old. Instead, all requests for the content of electronic communications would require a search warrant--a search warrant required by the Fourth Amendment, a search warrant based on probable cause--and law enforcement agencies would be required to notify within 10 days any persons whose email accounts were searched, subject to some logical and narrow exceptions, of course.

This legislation is also carefully crafted so that it would not impede the ability of law enforcement agencies to conduct legitimate investigative activities consistent with the Fourth Amendment.

I am pleased to say that our bill enjoys very broad support from the technology industry, from privacy advocates, constitutional scholars, and policy groups on both ends of the ideological spectrum in America.

The Lee-Leahy ECPA Amendments Act of 2015 is truly bipartisan in nature. The Senate bill, in addition to Senators Leahy and myself as the principal sponsors, also has six additional cosponsors. We have Republican Senators Cornyn, Moran, and Gardner and Democratic Senators Shaheen, Merkley, and Blumenthal. I hope and expect that we will have a lot of additional Senators of both political parties who will join us in this effort. The House version of this bill has 228 additional cosponsors--a very critical majority.

By working together as a Democrat from Vermont and a Republican from Utah, we hope all Senators will join with us to pass this meaningful, bipartisan legislation that would benefit all Americans. Congress should pass ECPA reform this year, and President Obama should sign these important privacy reforms into law.

I will end this discussion as I began. What were you doing in 1986? As it relates to your interaction with the digital world with computers, I would imagine that even though your life might be in many respects similar to what it was in 1986, it is very different in the way you interact with computers, with technology, with the online world, which basically no one was even aware of in 1986. Since 1986 the world has changed. We need to change the world to keep up with the times. We need to change the law to hold in place those protections that have been in our Constitution since 1791 to make sure the privacy rights of the American people are respected.

I encourage each of my colleagues to support this bill

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