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Legislative Alert

Congress Considers EPCA Changes

By Gene Voegtlin, Director, SACOP, IACP

ommittees in both the House and Senate have begun consideration of legislation to update the current laws governing law enforcement’s ability to access electronic communications. The Electronic Privacy in Communications Act (EPCA), enacted in 1986, was designed to extend existing legal restrictions covering electronic surveillance on telephones to include transmissions of electronic data by computer. However, over the past 25 years, the rapid changes in technology have given rise to a number of issues that are not directly addressed by the EPCA statute.

In late April, the Senate Judiciary Committee approved legislation (S. 607) that would amend the current law in several key ways. For example, the legislation would require search warrants for all electronic communications stored with a third-party provider. This is a change from current law which requires a search warrant only for unopened emails sent in the past six months. Mail older than 180 days requires only a subpoena. In addition, S. 607 would require the government to notify an individual that their emails have been accessed within 10 business days of obtaining the search warrant. Under the bill, law enforcement can ask the court to delay notification for 180 days if necessary to preserve the case or to protect safety.

S. 607 is currently cleared for consideration by the full Senate. However, no action has been scheduled at this time.

Law enforcement access to email is only one of the areas addressed as part of the EPCA debate. For example, questions concerning law enforcement access to geolocation information that is stored on cellphones and other electronic devices now play a key role in many law enforcement investigations.

Recently, the House Judiciary Committee held a hearing on the importance of geolocation technology in law enforcement investigations. IACP Police Investigative Operations Committee Chair, Pete Modafferi, testified on behalf of the IACP. In his remarks before the committee, Chair Modafferi stressed the great potential that lies in law enforcement’s utilization of the innovations in geolocation information. “Utilizing this information in the early stages of an investigation often provides fundamental building blocks on which cases may rest.”

A key focal point of the debate over geolocation technology is the question of what process and evidentiary standard must law enforcement meet in order to obtain geolocation data. Current law is unclear on this point, which has led to a variety of requirements and processes throughout the United States.

Some privacy advocates have called for new legislation that would require law enforcement agencies to establish probable cause and obtain a search warrant before they can access geolocation data. The IACP opposes these proposals. As Chair Modafferi said in his statement before the House Judiciary Committee, “Geolocation evidence is essential to obtain in the early stages of investigations when probable cause has not been established. Requiring probable cause to get basic, limited information about a person’s historical location would make it significantly more difficult to solve crimes and seek justice for victims.”

Modafferi continued “We do not have the luxury of setting the pace at a crime scene or in conducting an investigation. If we are constrained by a process that slows our progress in pursuing justice by extending the timeline of an investigation, the digital evidence at a crime scene may well go unexplored, evidence not be seized and analyzed, and our investigation will not meet our needs or the expectations of victims or civilized society as a whole.”

The House is expected to continue its consideration of EPCA reform over the coming months.

2013 IACP Resolutions Deadline Approaches

The submission deadline for resolutions to be considered at the 2013 IACP Annual Conference is August 20, 2013.

The resolutions process is the cornerstone of IACP’s policy development. Through this process the association membership addresses critical issues facing law enforcement. The resolution binds the official actions of the IACP staff and activities and serves as the guiding statement in accomplishing the work of the association.

Individual members, committees, sections, or divisions submitting resolutions for membership consideration must do so in writing to the IACP Executive Director for processing and forwarding to the Resolutions Committee no less than 60 days prior to the annual conference.

Once submitted the resolution will be reviewed by the IACP Resolutions Committee who will identify any areas of question or concern. During this review process, the Resolutions Committee may also request that other IACP Committee/Section or relevant subject matter experts review and comment upon the proposed resolution. Once the review process is complete, the Resolutions Committee will present the resolutions to the membership for ratification during a business meeting at the IACP Annual Conference.

If you are interested in submitting a resolution or have any questions, please contact  ♦



From The Police Chief, vol. LXXX, no. 6, June 2013. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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