After the terrorist attack in Orlando, Florida, early this month, the Electronic Communications Privacy Act (ECPA) has been discussed quite a bit. The ECPA, a law which took effect in 1986, limits the government’s access to electronic communications and other information. Due to the advancement in technology over the past 30 years, Congress finds itself playing a bit of a balancing act between protecting an individual’s privacy and ensuring governmental agencies have the power to enforce laws and protect the public.
The Senate is considering an amendment to the ECPA that would expand the government’s ability to collect electronic information through a National Security Letter (NSL). The NSL would allow the FBI to access customer records held by banks, telephone companies, Internet Service Providers, and others without the need for an order from a judge.
FBI Director James Comey has said the amendment is needed to clear up any confusion about what information the agency can gather without a judge’s permission. He says the agency’s work has been slowed in “a very, very big and practical way.”
Large technology companies including Yahoo, Google and Facebook, recently wrote to Congress opposing the amendment, saying “the amendment would dramatically expand the ability of the FBI to get sensitive information about users’ online activities without court oversight.”
Interestingly, Conn Carroll, a communications director for Senator Mike Lee, noted in an email dated June 15 to Law360 that the FBI, “found the Orlando shooter twice before he attacked and did nothing, thus there is zero evidence that giving them this additional invasion of privacy would have prevented anything.”
The expansion of NSL’s is included in the Intelligence Authorization Act for Fiscal Year 2017 as wells as in the amendment to the ECPA reform bill.