Bill Seeks to Update Ancient Email Privacy Law

A group of lawmakers from both parties have reintroduced a bill in the House of Representatives that would overhaul the aging Electronic Communications Privacy Act and add a provision to require the government to get a search warrant to access emails and other communications that are older than 180 days.
The Email Privacy Act passed the House unanimously last year, but  the Senate never acted on it before the Congress ended. On Monday, Rep. Kevin Yoder (R-Kansas) and Rep. Jared Polis (D-Colo.) introduced the bill again in the House, aiming for a quick passage in that chamber before it moves on to the Senate. The measure is designed to address a clause in the ECPA–which was passed in 1986–that allows the government to access email and other electronic communications that have been stored on a third-party server for more than 180 days, without a warrant.
“After the unanimous passage of our bill last year, I see no reason why we can’t get this done right away,” Yoder said. “Let’s give the Senate ample time to act, because more than 30 years has been long enough for Congress to wait on this. It’s simple, in 2017 if the federal government wants to access Americans’ digital content, it must get a warrant.”
The 180-day threshold is an artifact of the time in which the original law was written. At that time, email providers typically didn’t keep copies of users’ emails for long. The messages lived on the sender’s and receiver’s computers, rather than on servers owned by the service providers. That’s all changed with the advent of webmail services such as Gmail that offer users essentially unlimited storage, meaning that those messages live forever on Google’s servers. Under the existing ECPA, messages older than 180 days would be available to the government without a search warrant.
““The statute does not adequately protect the Fourth Amendment rights of our citizens and we must make clear that the law requires the government to get a warrant in order to access private online communications. Our citizens deserve and expect no less. I look forward to swift passage of this bill, which the House approved last Congress by a vote of 419 – 0, and its enactment in the new Congress,” Rep. John Conyers (D-Mich.) said.
The EFF is pushing for the Email Privacy Act’s passage, as well, saying that the bill would go a long way toward addressing the shortcomings in the 1986 ECPA.
“This session, Congress needs to close this loophole and extend fundamental privacy protections to electronic communications. Lawmakers must ignore certain agencies’ calls for exceptions to the bill’s warrant requirement and reject attempts from some members to weigh the bill down with unrelated amendments that would make digital privacy worse instead of better,” Kate Tummarello of the EFF said in a post.
Image: Sebastien Wiertz, CC By Nd license.