On the topic of ECPA reform, a handful of Senators at last week’s mark up expressed concern that the current emergency disclosure provision permits, but does not require, providers to disclose information to law enforcement in an emergency situation. Word on the street is that there are ongoing discussions among Congressional representatives about whether to enhance the ability of law enforcement to gain access to communications content in an emergency in order to respond to this concern. Such a change could invite abuse. Our provider clients know full well that sometimes what is being called an “emergency” doesn’t always meet the parameters of the statute. As a result, emergency disclosure requests are occasionally denied. More often than not, however, any denials are due to the government’s unwillingness to share the details of the emergency with the provider because the requestor believes that invoking the word “emergency” should do the trick by itself. A new mandatory provision would take away a provider’s ability to deny these requests and would likely result in increased burden on providers, but only if the government were willing to certify that an emergency (as per the old statutory definition) exists. Such a disclosure provision would almost certainly come with statutory immunity for providers, but the rest of the details, including whether evidence obtained from improper emergency disclosures would be subject to suppression, are still open questions.
Please do not hesitate to contact us if you want more information about these proposals, or if you want us to help you articulate your position to the appropriate audiences.
