By: Andrew Strauss
The Electronic Communications Privacy Act (ECPA) was signed into law in 1984. Unlike George Orwell’s 1984, the law’s purpose was to restrict the government from being able to obtain stored information, information obtained via wiretap, and information obtained from tapping or tracing a telephone. The law has been amended several times; most recently by the Patriot Act. These amendments, however, have never extended the law to protect emails. As of today, the government can access your emails stored by third parties that are older than 180 days without a warrant. The government does not even need probable cause to access these emails. Congress, most likely reacting to the recent IRS and NSA scandals, has stepped in.
Three bills have been introduced, two in the House and one in the Senate, that would mandate that the government obtain a warrant before reading an email. H.R. 1852, The Email Privacy Act, is the leading bill in the House of Representatives. The bill was introduced by Representative Yoder, a Republican from Kansas. The bill has received bipartisan support, with 142 cosponsors; 46 of whom are Democrats. H.R 1847, The Electronic Communications Privacy Act Amendments Act of 2013, is another bill in the House of Representatives. Because the bill has language identical to H.R. 1852, the bill is an attempt by its sponsor, Representative Salmon (R-AZ.) to get credit in his home state for combating the IRS and NSA. In the Senate, S. 607, The Electronic Communications Privacy Act Amendments Act of 2013, is H.R. 1852’s companion bill. S. 607 is sponsored by Senator Leahy (D-VT.) and co-sponsored by Senator Lee (R-UT.), Senator Paul (R-KY.), and Senator Udall (D-CO.); talk about an odd group.
All of the bills contain identical language and will amend ECPA to bring it into the modern age. As mentioned earlier, the government can access emails that are older than 180 days without a warrant under the current version of the law. The proposed bills drastically alter this part of the law. The bills would eliminate the 180 day requirement. While it may appear this just gives the government access to all your emails, it actually does this to ensure that new privacy laws would apply to all emails. This way, the government needs a warrant for all emails regardless of how old they are. Not only will the government need a valid warrant to get the information, it will also be required to serve the warrant upon the person whose information is being seized, according to Section 3 of both bills. This leads to transparency and forces the government to think about whether it really needs the information or not. ECPA does outline situations where the government can delay notice, but there was never a hard timeframe on how long this could go on; the bills would amend this. Law enforcement is only allowed to delay notice for up to 180 days and other government entities can only delay notice for up to 90 days. Notice can only be delayed when certain situations are met; for example, when notice would cause flight from prosecution or would endanger the life or safety of an individual. Delaying notice can only be approved by a court order.
The bills would also require the Comptroller General to submit a report about customer disclosures pursuant to Section 5 of both bills. The report would require a comprehensive analysis and evaluation for each of the five years before the amendments. It would also detail how often Federal, State, and local law enforcement used ECPA to obtain information about private citizens. The report will then compare that information with how the amendments were affecting law enforcement’s ability to obtain the information under the new warrant rules. This will help Congress see how the new rules are working and if the new rules are too burdensome for law enforcement and the courts. The report will detail how many warrants were requested, how many times a delayed notice request was granted, and how long it takes service providers to reply with the information requested.
I think these bills are proof that Congress can come together and do good work on behalf of the American people. I’m actually surprised no one took up this issue sooner. It seems to me that having email not be subject to a warrant requirement is a huge privacy concern. While I am sure that stored emails sometimes do lead to big breaks in cases, surely the government needs a warrant to obtain this information. I will follow this issue closely, as I hope both bills find their way through their respective chambers and to President Obama’s desk.
