Senate Judiciary Plans Thursday Markup of ECPA Modernization Bill

The Senate Judiciary Committee plans a Thursday markup for a bill that would update the 30-year-old Electronic Communications Privacy Act (ECPA) to better protect people's emails and other electronic data held in the cloud. The markup -- scheduled for 10 a.m. in 226 Dirksen -- comes three weeks after the House unanimously approved its version by 419-0 (see 1604270067). Similar to the House bill, the bipartisan ECPA Amendments Act (S-356) would require law enforcement agencies to obtain a warrant to access a suspect's electronic data in all cases. Currently, agencies can get warrantless access to communications stored for more than 180 days. Sens. Mike Lee, R-Utah, and Pat Leahy, D-Vt., introduced the bill in September, which had a hearing then (see 1509160055) and has 27 co-sponsors. Civil law enforcement agencies like the SEC and the FTC argue the proposed measures could impede their investigations. In a letter Wednesday to Senate Judiciary Chairman Chuck Grassley, R-Iowa, SEC Chairwoman Mary Jo White and Commissioners Michael Piwowar and Kara Stein wrote that as a civil agency, it wouldn't be able to get criminal warrants as required by the legislation. The agency then wouldn't be able to obtain communications directly from an ISP and "the bills would provide a haven that is not available for paper material and allow wrongdoers to conceal their misdeeds from civil law enforcement," they wrote. They suggested the SEC and other civil law enforcement agencies could be required to get a court order or other judicial standard comparable to a criminal warrant. They also said affected users should be given notice and an opportunity to object in court.