Omnibus Spending Bill Includes ECPA Reform

(12/31/15) On December 18, the president signed into law a 2,000-page omnibus spending bill that included a provision prohibiting federal financial services agencies from requiring that an Internet service provider (ISP) provide the agency with the electronic communications of customers without a search warrant.

The provision, which was introduced by Representative Kevin Yoder (R-KS), was originally included in the House Financial Services Appropriations bill back in July. Jurisdiction of the provision therefore extends to the Securities and Exchange Commission, Federal Trade Commission, and Internal Revenue Service among others.

Yoder’s amendment is designed to limit the agencies’ ability to obtain electronic communications of individuals without first obtaining a search warrant from a judge. Currently agencies are using administrative subpoenas to obtain such records. Agencies have expressed concerns with the provision, claiming it will limit their ability to obtain information in a timely manner, potentially jeopardizing investigations.

The provision is seen as the first step in updating the Electronic Communications Privacy Act (ECPA). Both chambers of Congress are currently working to modernize the law and have bills ready to move forward in the new year (S. 356 and H.R. 699). The bills would bring the law more in line with contemporary practices and expectations regarding electronic communications. Since the bill was passed in 1986, many provisions of the law have become outdated and inappropriate for today’s world; for example, ECPA essentially designates electronic communications older than 180 days as non-private and allows government agencies to obtain them with simply an administrative subpoena rather than a court-approved search warrant. In today’s world, the difference between emails newer and older than 180 days is irrelevant since people save more and more information on third-party servers rather than personal hard drives.

More information on ECPA reform efforts in Congress can be found in a previous blog post. Both bills set for consideration in 2016 have bipartisan support, increasing the potential for ECPA reform beyond the omnibus provision to occur. Watch the EDUCAUSE Policy Spotlight blog for more developments.

Jen Ortega serves as a consultant to EDUCAUSE on federal policy and government relations. She has worked with EDUCAUSE since 2013 and assists with monitoring legislative and regulatory proposals across a range of policy areas, including cybersecurity, data privacy, e-learning, and accessibility.