SUMMARY OF THE

ELECTRONIC COMMUNICATIONS PRIVACY ACT AMENDMENTS ACT OF 2015

The Lee-Leahy Electronic Communications Privacy Act Amendments Act of 2015 would
update the privacy protections for Americans’ email and other electronic communications for the
digital age. The Electronic Communications Privacy Act (ECPA) is one of the nation’s premier
digital privacy laws. But in the three decades since it was passed, technological advances have
outpaced ECPA’s protections. The bill would update this law to improve the privacy protections
for electronic communications information that is stored or maintained by third-party service
providers. The bill maintains the careful balance that Congress struck when it first enacted the
law – to continue to protect and promote consumer privacy interests, law enforcement needs,
and American innovation in the digital age.

SECTION 1 – SHORT TITLE.

This section designates the Act as the Electronic Communications Privacy Act Amendments Act
of 2015.

SECTION 2 – CONFIDENTIALITY OF ELECTRONIC COMMUNICATIONS.

Section 2 amends Section 2702 of Title 18 (which is part of ECPA) to prohibit an electronic
communications or remote computing service provider from voluntarily disclosing the contents
of its customers’ email or other electronic communications to the government. There are limited
exceptions to this prohibition under current law, including customer consent and disclosure to
law enforcement to address criminal activity.

SECTION 3 – ELIMINATION OF 180 DAY RULE; SEARCH WARRANT

Section 3 amends ECPA so that the disclosure of the content of email and other electronic
communications by an electronic communications or remote computing service provider to the
government is subject to one clear legal standard – a search warrant issued based on a showing
of probable cause. The provision eliminates the confusing and outdated “180-day” rule that
provides different legal standards for the government to obtain email content, depending upon
the email’s age and whether the email has been opened. The provision also requires that the
government notify the individual whose account was disclosed, and provide that individual with
a copy of the search warrant and other details about the information obtained. Such notice must
be provided within ten business days for a law enforcement agency, and three business days for
other agencies, of a government entity’s receipt of the communications unless the notice is
delayed pursuant to Section 4 of the bill.

Section 3 also reaffirms current law to clarify that the government may use an administrative or
grand jury subpoena in order to obtain certain kinds of electronic communication records from a

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service provider, including customer name, address, session time records, length of service
information, subscriber number and temporarily assigned network address, and means and
source of payment information. Section 3 also adds civil discovery subpoenas to the types of
subpoenas that may be used under existing law (administrative subpoena authorized by federal or
state law, federal or state grand jury subpoena and trial subpoena) to obtain non-content
information from a third-party provider.

Lastly, the section contains a rule of construction regarding government access to internal
corporate email. It states that nothing in the bill precludes the government from using a subpoena
to obtain email and other electronic communications content obtained from an intended recipient
or original sender, or to obtain such communications directly from a company when the
communications are to or from an officer, agent or employee of a company and the company is
acting as an electronic communications service provider for its own internal email system.

SECTION 4 – DELAYED NOTICE.

Section 4 amends section 2705 of Title 18 to provide that the government may seek a court order
to delay notifying an individual of the fact that the government has accessed the contents of the
individual’s electronic communications for up to 180 days if the requesting government entity is
a law enforcement agency, and for up to 90 days if the requesting government entity is a civil or
administrative enforcement agency. A court may extend the delay periods for a period of up to
an additional 180 or 90 days at a time, respectively.

Section 4 also establishes a time limit on the period that the government could preclude a service
provider from informing its customer about the disclosure of electronic communications
information to the government. If the government entity is a civil or administrative enforcement
agency, the applicable time period for preclusion of notice is 90 days. The time period for
preclusion may extend up to 180 days if the requesting government entity is a law enforcement
agency. These time periods may also be extended by a court for up to an additional 90 or 180
days at a time, respectively.

Lastly, Section 4 requires that service providers notify the government of their intent to inform a
customer or subscriber of the fact that the provider has disclosed the individual’s electronic
communications information to the government at least three business days before the provider
gives such notice to the customer or subscriber. The purpose of this provision is to ensure that
the government has an opportunity to protect the integrity of its investigation and, if warranted,
to ask a court to delay the notification, before such notice is given.

SECTION 5 - EVALUATION BY THE GOVERNMENT ACCOUNTABILITY OFFICE.

Section 5 requires that the Comptroller General of the United States submit a report to Congress
by September 30, 2017, that evaluates, among other things, during the five years prior to the
effective date of the amendments in the bill: (1) how often law enforcement relied upon section
2703 of Title 18 to request electronic communications content information; (2) the average
length of time needed for service providers to comply with such requests; (3) the number of

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times a warrant was used for such requests; and (4) the number of times law enforcement
requested delayed notification pursuant to section 2705. Section 5 also requires that the
Comptroller General: (1) evaluate the effects of the new warrant requirement contained in the
bill on the courts; (2) conduct a survey to determine the average length of time required to
respond to requests for information; and (3) determine whether the new warrant requirement in
the bill resulted in an increase in the use of the emergency exception to the warrant requirement
in section 2702(b)(8) of Title 18.

SECTION 6 - RULE OF CONSTRUCTION.

Section 6 provides that the search warrant requirement for electronic communications content
contained in Section 3 of the bill does not apply to any other federal criminal or national security
laws, including Title III of the Omnibus Crime Control and Safe Streets Act of 1986 (the
“Wiretap Act”) and the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. § 1801, et seq.
(FISA)).