As the intense debate over S. 743, the so-called “Marketplace Fairness Act,” progresses in the Senate, Internet activists and privacy advocates should remember that the MFA isn’t the only important piece of Internet legislation being considered by the chamber this week.

Last Thursday, the Senate Judiciary Committee began consideration of S. 607, the Electronic Communications Privacy Act Amendments Act, sponsored by Sens. Patrick Leahy, D-Vt., and Mike Lee, R-Utah.  And while deliberation over the MFA will be detailed, nuanced and even heated at times, the debate over the Leahy-Lee legislation should be quite simple.

Why? Because ECPA reform, as it is embodied in S. 607, is a good idea that is long overdue.

The original Electronic Communications Privacy Act of 1986 aimed to curb the ways in which the government could access citizens’ electronic communications. Anyone who doubts that much has changed in technology and communication since then need only be reminded that in 1986, billboard topping movies included Ferris Bueller’s Day Off, whose plotline would be largely inconceivable in today’s world of social media updates and instant communication. We were still ten years away from the launch of Hotmail and the popularization of web-based email services.

Notwithstanding several rounds of amendments in the years since it was first passed, some of the largest holes in privacy protection have yet to be plugged. For example, ECPA allows email that is already open and stored online to be obtained by law enforcement without a warrant. For users of web-based email services such as Gmail, this would affect most of the user’s inbox. The same warrantless search provision applies to emails stored unread for more than 180 days, as well as calling patterns. This certainly wasn’t what the founders had in mind when trying to protect Americans’ right “to be secure in their persons, houses, papers and effects” from government infringement. The law has been challenged in court, and despite a 2010 victory for privacy advocates, other cases have upheld the law.

The time has come to update the provisions.  A FOIA request from the American Civil Liberties Union surfaced several documents from the IRS claiming that Internet users “do not have a reasonable expectation of privacy” and that ‘the Fourth Amendment does not protect communications held in electronic storage, such as email messages stored on a server.’ An updated law could remove the uncertainty caused by contradictory court rulings and force updates to IRS guidelines.

The ECPA Amendments Act would largely fix this important privacy concern. The statute clarifies that the government must acquire a search warrant in order to access private electronic communications, finally providing online communication the same protections as written papers. Numerous groups have joined together to push for reform, from Internet companies to conservative grassroots and policy shops (including this organization). Hopefully this important legislation won’t be lost in this week’s heated Internet disputes.

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