It’s a surprise when Congress can even get something of substance done — let alone when it can get it done unanimously.
With a favorability rating of 17 percent, according to Gallup, you'd think that nothing gets done on Capitol Hill. Yet last Wednesday the House of Representatives, on a 419-0 vote, passed the Email Privacy Act that would update privacy protections for emails and electronic documents stored by third-party service providers.
With our society having evolved from Web pages and social networks to "cloud computing" — in which personal documents aren't stored on personal computers and smartphones, but on servers in data centers — that's a big deal.
It's almost like creating a "Digital Fourth Amendment." It's applying, to the technologies of our day, the 18th century standard articulated by the Constitution: The citizens be secure "against unreasonable searches and seizures."
This standard doesn't prevent the government or the police from obtaining information upon probable cause or on reasonable suspicion. It simply bars the issuance of a general warrant.
As House Judiciary Chairman Bob Goodlatte, R-Virginia, said on Wednesday, prior to passage of the measure: "Today is a historic day. Today, the House of Representatives will be the first chamber in Congress to approve legislation that has been pending before the House and Senate for several years to reform and modernize the Electronic Communications Privacy Act."
Passed 30 years ago, in 1986, ECPA's technical distinctions between "stored" electronic communications and electronics communications in transit is now badly outdated.
"Contrary to practice 30 years ago, today vast amounts of private, sensitive information are transmitted and stored electronically," said Goodlatte.
Certainly, "stored" electronic communications can contain evidence of criminal wrongdoing. But so can letters or diaries that are stored in a desk drawer at home or the office. When police need access to such analog information, they can obtain a search warrant. If the Email Privacy Act passes the Senate and is signed by President Obama, that same standard will also apply to digital information stored in the cloud.
Interestingly, the main champions for ECPA reform have been members of the Senate. Year after year for more than a decade, Sen. Patrick Leahy, D-Vermont, has introduced a variant of such a measure to ensure digital privacy protections.
The momentum ramped up over the past several years with the bipartisan advocacy of Republican Sen. Mike Lee of Utah. Last year, they introduced the ECPA Amendments Act of 2015 — the vast bulk of which has now passed the other chamber.
In a joint statement, Lee and Leahy said: "It is long past time to reassure the American people that their online communications are protected from warrantless searches.
"As today’s House vote shows, it is that rare bill that garners support from the full range of the political spectrum, and that can become law even in an election year."
The unanimous House vote gives the measure strong momentum coming back to the Senate, said an aide to Lee.
Sitting in the way of passage, however, is Senate Judiciary Committee Chairman Charles Grassley, R-Iowa. He's opposed passage because of concerns about its impact on law enforcement.
Grassley has joined forces with Lee, and with Sen. Dick Durbin, D-Illinois, on some other innovative policy positions, such as the Smarter Sentence Act rationalizing federal sentencing guidelines for drug offenders.
Now advocates believe that — with an amendment passed in committee that does not require but not bar Internet service providers to inform their customers when law enforcement officials access their emails — they can rally the whole of Congress to finish the job and pass this significant piece of legislation.
An advocate for the cause is the technology industry, of course. But its foremost sponsor is a unique coalition called Digital 4th, which unites the left (the American Civil Liberties Union), the right (Americans for Tax Reform and Heritage Action for America) and the center (Center for Democracy and Technology).
The unanimous vote "illustrates that the coalition worked very hard to balance the privacy interests with law enforcement interests," said Chris Calabrese, vice president for policy of CDT.
"When Chairman Grassley has a chance to look at the bill, he will see that it protects private information, collected by a third party," said Calabrese. "This gets what everybody wants without triggering law enforcement concerns."
We'll see within months whether Congress — or even simply the Senate — can do its job by embracing these long overdue privacy protections.
Doing so may even help increase the percentage of people who want to send them back for another term.
Drew Clark is of counsel at the law firm of Best Best and Krieger, where he focuses on technology, media and telecommunications. Connect him on Twitter @drewclark or via email at [email protected].