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Fourth Amendment supporters: Obama's NSA reforms must include ECPA reform

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Proponents of reform to the National Security Agency's data collection program say that any reforms must include changes to the Electronic Communications privacy Act, a bill that was originally passed in 1986 and has not been updated to address changing technology.

Sens. Patrick Leahy, D-Vt., and Mike Lee, R-Utah, introduced a bill in April to amend the ECPA in order to update the law's privacy protections to relate to 21st century technologies.

Most notably, Leahy and Lee’s bill would end the “180-day rule” that allows government agencies to collect emails without a warrant.

“Instead, all requests for the content of electronic communications would require a search warrant based on probable cause,” Lee said. “And law enforcement would be required to notify, within 10 days, any persons whose email accounts are searched, subject to some logical exceptions.”

President Obama's NSA review panel suggested in December that the NSA's data collection programs be curbed, including recommending changes to the Patriot Act to end bulk data collection. Amending the ECPA is necessary to that goal, since the NSA is not the only federal agency that has access to private communications.

For example, a Freedom of Information Act request revealed last year that the IRS has authority under the ECPA to read emails, instant messages and text messages without a warrant.

ECPA reform supporters just want emails to have the same privacy rights as printed correspondence.

“Had those same communications been sent on paper, the IRS would need to get a judge to sign a warrant for them, regardless of whether you opened a postmarked envelope or let it sit on your mother-in-law's coffee table for 181 days,” said Christopher Calabrese, legislative counsel for privacy-related issues for the ACLU.

Obama is expected to announce NSA reforms Friday, but his blueprint for overhauling the data collection program so far lacks details. Those will be left to Congress. The changes will include transparency measures that are designed to increase public confidence in the programs.

Passing any reforms to the NSA's data collection programs might prove difficult, despite broad bipartisan support in Congress and the support of 59 percent of Americans.

Obama's reforms will require congressional action, and even though an amendment from Rep. Justin Amash, R-Mich., nearly passed in July, there's no guarantee that new reforms would have a better chance.

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Ashe Schow

Commentary Writer
The Washington Examiner