Congress took a significant step today toward bringing our privacy laws in line with the reality of the digital age. The House overwhelmingly voted 419–0 in support of the Email Privacy Act, a bill supported by the ACLU, which updates the outdated Electronic Communications Privacy Act by requiring law enforcement to obtain a warrant before accessing emails, texts, photos, or other electronic content. And now it’s time for the Senate to do its job and pass this critical reform.
ECPA was enacted in 1986, a time when many modern communications technologies, from web-based email to the cloud, were many years from being reality. Under the Justice Department’s interpretation of ECPA, law enforcement officers could access emails older than 180 days and any emails that had been opened without a warrant. The Email Privacy Act eliminates these arbitrary exceptions to the warrant requirement, and it would bring the law in line with what courts have already decided — that emails are protected by the Fourth Amendment.
While the Email Privacy Act is a huge step forward, the bill does have flaws. A critical privacy protection included in the original version of the bill, sponsored by 314 members of the House, required that individuals be notified if the government requested access to their electronic communications. This provision was removed by the House Judiciary Committee, making it difficult for someone to mount a legal challenge in cases of government abuse.
Other improvements can be made to the bill to bring it in line with strong electronic privacy bills already passed in states like California. Prohibiting illegally obtained electronic information from being used in a trial would further curb the potential for government abuse. Congress should also require that a probable cause warrant be required for location information, which in some cases can be accessed without a warrant, according to DOJ policy.
Reps. Kevin Yoder (R-Kan.), Jared Polis (R-Colo.), John Conyers, Jr. (D-Mich.), Kevin McCarthy (R-Calif.), and the House leadership deserve praise for crafting this strong, bi-partisan reform. The Senate should view the overwhelming bipartisan support of this bill in the House — and from many privacy advocates and companies—as a sign to move swiftly to bring U.S. privacy law into the 21st century.
With passage of this bill, Congress will be poised to help ensure that all Americans retain their Fourth Amendment rights in the digital realm.