Resources

Below are some additional resources on the Electronic Communications Privacy Act (ECPA) and the need to update the law for the Digital Age. 


Legislation:

 



Hearings: 

"The Electronic Communications Privacy Act (ECPA), Part 2: Geolocation Privacy and Surveillance,House Judiciary Committee, Subcommittee on Crime, Terrorism, Homeland Security and Investigations, April 25, 2013.

Witnesses:

  • Mark Eckenwiler, Perkins Coie
  • Peter A. Modaferri, International Association of Chiefs of Police
  • Catherine Crump, ACLU
  • Matt Blaze, University of Pennsylvania

"The Electronic Communications Privacy Act (ECPA), Part 1: Lawful Access to Stored Content," House Judiciary Committee, Subcommittee on Crime, Terrorism, Homeland Security and Investigations, March 9, 2013.

Witnesses:

  • Elana Tyrangiel, U.S. Dept. of Justice
  • Richard Littlehale, Tennessee Bureau of Investigation
  • Orin Kerr, George Washington Univ. Law School
  • Richard Salgado, Google

The Electronic Communications Privacy Act: Government Perspectives on Protecting Privacy in the Digital Age," Senate Judiciary Committee, April 6, 2011.

Witnesses:

  • Cameron F. Kerry, General Counsel, U.S. Dept. of Commerce
  • James A. Baker, Associate Deputy Attorney General, U.S. Dept. of Justice

"ECPA Reform and the Revolution in Cloud Computing," House Judiciary Committee," September 23, 2010.

Witnesses:

  • Edward W. Felten, Ph.D., Director, Center for Information Technology, Princeton University
  • Richard P. Salgado, Senior Counsel, Law Enforcement and Information Security, Google, Inc.
  • Michael D. Hintze, Associate General Counsel, Microsoft Corporation
  • Paul Misener, Vice President for Global Policy, Amazon.com
  • David R. Schellhase, Executive Vice President and General Counsel, Salesforce.com
  • Perry C. Robinson, Associate General Counsel, Rackspace Hosting
  • Kevin D. Werbach, Associate Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania
  • Fred H. Cate, Director, Center for Applied Cybersecurity Research, Indiana University
  • Thomas B. Hurbanek, Senior Investigator, Computer Crime Unit, New York State Police
  • Kurt F. Schmid, Executive Director, Chicago High Intensity Drug Trafficking Area Program
  • Marc J. Zwillinger, Partner, Zwillinger Genetski, LLP

"The Electronic Communications Privacy Act: Promoting Security and Protecting Privacy in the Digital Age," Senate Judiciary Committee, September 22, 2010.

Witnesses:

  • Cameron F. Kerry, General Counsel, U.S. Dept. of Commerce
  • James A. Baker, Associate Deputy Attorney General, U.S. Dept. of Justice
  • James X. Dempsey, Vice President for Public Policy, Center for Democracy & Technology
  • Brad Smith, General Counsel and Senior Vice President, Legal and Corporate Affairs, Microsoft
  • Jamil N. Jaffer, Attorney

"ECPA Reform and the Revolution in Location Based Technologies and Services," House Judiciary Committee, June 24, 2010.

Witnesses:

  • Matthew A. Blaze, Ph.D., Associate Professor of Computer and Information Science, University of Pennsylvania
  • Michael Amarosa, Sr. Vice President, Public Affairs, TruePosition, Inc.
  • Richard Littlehale, Assistant Special Agent in Charge, Technical Services Unit, Tennessee Bureau of Investigation
  • Marc J. Zwillinger, Partner, Zwillinger Genetski, LLP
  • Hon. Stephen Wm. Smith, U.S. Magistrate Judge, Southern District of Texas

"Electronic Communications Privacy Act Reform," House Judiciary Committee, May 5, 2010

Witnesses:

  • James X. Dempsey, Vice President for Public Policy, Center for Democracy & Technology
  • Albert Gidari Jr., Partner, Perkins Coie, LLP
  • Orin S. Kerr, Professor of Law, George Washington University Law School
  • Annmarie Levins, Associate General Counsel, Microsoft Corporation

Cases:

  • U.S. v. Warshak, F.3d 266 (6th Cir. 2010) -- held that law enforcement must have a warrant to obtain emails stored by email providers and that a provision of ECPA that allows law enforcement to use a mere subpoena to access email more than 180 days old is unconstitutional.

  • In Re Application of the U.S., (3rd Cir. 2010) -- held that judges have discretion to require the government to obtain a warrant to access stored location information.
  • U.S. v. Jones, (Supreme Court, 2012) -- held that the use of a GPS device to track an automobile over a prolonged period of time is a search under the Fourth Amendment, whch normally requires a warrant issued by a judge.

Text of the current law:

The Electronic Communications Privacy Act of 1986 is codified primarily in three chapters of Title 18 of the US Code:

The recommendations of Digital Due Process mainly focus on the Stored Communications Act.


Other Documents:

Legal analysis of the DDP recommendations by Becky Burr, WilmerHale. March 2010.

The revised ECPA as favorably reported by the Senate Judiciary Committee on April 25, 2013.