The Email Privacy Act passed the House unanimously for the second time, after failing to pass the Senate last year. The bill aims to close a loophole in the older Electronic Communications Privacy Act (ECPA) that allows the police to obtain emails that are older than six months without a warrant.
Updating The Electronic Communications Privacy Act
One of the ECPA’s biggest flaws is that it allowed the U.S. government to obtain emails without a warrant as long as the emails were more than 180 days old. This loophole may not make much sense today, but when the law was introduced in 1986, it’s likely that nobody thought people would want to keep emails for more than six months. Therefore, it may not have been considered much of a privacy issue at the time.
Today's email services tend to hold on to data indefinitely, which means law enforcement agencies wouldn't need a warrant to obtain virtually all of your emails. However, this type of policy was found unconstitutional by one court, and the whole House of Representatives has agreed twice that warrantless access to emails is not acceptable, which is why they’re now trying to pass a law against it.
Second Time's The Charm?
The last time the bill passed unanimously through the House, it was blocked in the Senate. This was in part because Senator Jeff Sessions tried to bring the “emergency” clause back into the bill. This would have let the government bypass the warrant requirement by interpreting most data requests as “emergencies.”
Even if the bill passes through the Senate this time, it may need an overwhelming majority to become law. President Trump has been critical of certain privacy protections and Sessions, his pick for the head of the Justice Department, has also been a supporter of encryption backdoors.
This doesn’t mean that President Trump will veto the bill once it reaches his office, but he may try to pressure senators into voting against it on the Senate floor.
Representative Darrell Issa released the following statement after the bill passed the House:
If the government wants to read your emails, then they should be required to obtain a warrant just like they would need in order to read your letters, search your hard drive or listen in on your phone calls. Technology has made incredible advances over the years, but the privacy laws for digital communications just haven't kept pace.
Right now, the rules governing how and when the government can access a person's emails, photos, documents and other online communications are outdated and do not provide for the same Fourth Amendment protections given to on-paper or in-person communications.
The bill we've passed today is an important privacy safeguard that will help cement Americans' rights in the digital age.
Email Privacy Act Still Not Perfect
A compromise was made last year to eliminate the emergency clause from the bill. However, that compromise also removed another clause, which would have required law enforcement to notify citizens when they are under investigation. People will instead have to rely on the companies receiving these warrants to notify them about the investigation. Because companies aren’t obligated to do this, chances are good that many simply won't.
Still, the Email Privacy Act remains an improvement over the existing law, as long as other privacy protections aren't removed as it passes through the Senate. We’ll have to see how it evolves over the coming weeks or months.
The bill is supported by all members of the House as well companies such as Google, Microsoft, Yahoo, Amazon, and organizations such as the ACLU, the Consumer Technology Association, the US Chamber of Commerce, FreedomWorks, the Internet Association and more.