Email Privacy Act Finally Moves Forward in Congress

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On Wed, the House Judiciary Committee has unanimously approved the Email Privacy Act, a bill to protect Americans’ emails from government surveillance. The bill would reform a 30-year-old Electronic Communications Privacy Act (ECPA) by requiring law enforcement to obtain warrants from court before compelling companies to hand over access to emails or other electronic communications, regardless of how old they are.  A law enforcement agency is required to provide a customer whose communications were disclosed by the provider a copy of the warrant and a notice that such information was requested by, and supplied to, the government entity. The government can request delays of such notifications; suspects in the investigation wouldn’t necessarily realize that a search is taking place. 


The bill’s original version enjoyed a remarkably large
bipartisan support in the House, garnering 314 co-sponsors, almost three-quarters of all of the Representatives. Similar legislation has been introduced in the Senate by Senators Patrick Leahy (D-Vermont) and Mike Lee (R-Utah).


The existing law, 1986 Electronic Communications Privacy Act, allows the government to access the emails by only serving a subpoena, not a warrant, against companies that provide digital communication services.  That law was enacted prior to the advent of Web-based email services (e.g. Gmail and Yahoo) which store emails in the virtual cloud.


Some civil agencies (e.g. the Securities and Exchange Commission) insist on amendments that would except them from the bill’s warrant requirements. That’s because warrants are unavailable in purely civil cases such as financial fraud investigation.


Overall, the Email Privacy Act is an improvement to the existing law that only requires subpoenas which are not subject to the same judicial monitoring as the warrants are. If enacted, the proposed law is likely to curtail the federal authorities’ power to collect more information than is necessary for investigation, thus, improving privacy of online communications.


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