The Electronic Communications Privacy Act Amendment Act (S 356), authored by Senators Mike Lee (R-UT) and Patrick Leahy (D-VT), was brought before the Judiciary Committee by Senator Chuck Grassley (R-IA). Grassley’s decision is an incredibly important one in defending the Constitution in a world with almost unlimited technological capacities that can undermine the privacy and freedoms of American citizens, and should be commended.


In the age of increasingly capable technology, it is important to make sure that our laws, and our constitutional rights, keep up with the evolving nature of the digital world. The Senate, as well as the House, with their Email Privacy Act (HR 699) have helped introduce effective pieces of legislation to ensure that the 4th Amendment Rights of American citizens are protected and national security interests are conserved.


The bill is an expansion of the 1986 Electronic Communications Privacy Act (ECPA), which extended 4th Amendment protections to emails. In the 30 years, since ECPA was passed, many advances have been made that render it obsolete. Governmental authorities have used the language of the previous law to violate the privacy of today’s Americans, claiming that new, improved technology is technically not protected.


This naked example of overreach threatens the United States economy, and the ability of US companies to compete. In a world where much data is stored in “The Cloud,” the government is hoping to use the aforementioned loopholes in ECPA to access that information without confronting the owner of the data. This violates that citizen’s or business’s due process rights. It also has the effect of harming small businesses who do not have the financial resources to comply with the legal complexities that entails. It also deters investment in the United States by signaling that company data will not be protected, and risks losing US business and jobs to foreign competitors.


Cloud computing is growing into a huge industry and is projected to be worth about $241 billion by the year 2020. US businesses can save both time and money moving to the Cloud. Not only will continuously violating the rights of its citizens prompt European companies to exploit our weak record on privacy to draw business away from the US, it will decrease competition within the US, as many companies will fade away in the face of these regulations. Supporting ECPA reform in the Senate will send a strong message that the US supports its growing industries to the rest of the world.


Concerns about security interests can also be assuaged. Neither S 356, nor its House companion, amends any of the parameters of the Foreign Intelligence Surveillance Act (FISA). FISA deals with issues of national security and terrorism investigations. The government’s ability to bring justice to these cases will not be altered in any way. Additionally, many domestic law enforcement officials have testified that these new reforms in S 356 will not hinder the abilities of local law enforcement at all.


Greater technological advances make it far easier for the government to infringe on our rights. The protection of our rights is not a partisan issue and the House displayed that in its rare, unanimous decision to pass this much-needed reform. In order to ensure that as technology advances, the Constitution does not fall by the wayside. It is time for the Senate to expand on Senator Grassley’s important measure to bring this before the Committee, and pass this legislation for all Americans.