OTI Joins Amicus Brief in Hately v. Watts

Earlier this week, New America’s Open Technology Institute (OTI) joined with the Center for Democracy and Technology and the Electronic Frontier Foundation to file an amicus brief in the case of Hately v. Watts. In short, the case involves the defendant, Watts, gaining access to Hatley’s email service in the process of investigating suspected infidelity by Watt’s wife. Hately sued, and one of the allegations was a violation of the civil penalties in the Electronic Communications Privacy Act (ECPA). Our brief encourages the Fourth Circuit to overrule a dangerous interpretation of ECPA made by the District Court, which would have the dramatic effect of removing important privacy protections for large portions of everyday Americans’ emails and cloud documents. OTI has argued for years that ECPA should be read to give these sorts of documents as many privacy protections as possible, despite the fact that they are held on servers owned by third parties, and courts across the country have largely agreed.

The mistaken interpretation by the judge in the Hately v Watts case is another example of why OTI is encouraging Congress to finally pass ECPA reform. Congress has been working on a law to fix the language of ECPA to make clear that these interpretations are incorrect. Such a bill has passed the House of Representatives overwhelmingly twice now, but the Senate has not taken it up. We hope that this case will help the Senate see the importance of ECPA reform and work to pass this important bill.