Email Privacy Legislation Reintroduced in the House
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Advances in technology over the past 30 years have rendered the Electronic Communications Privacy Act (ECPA), the law that established the standards for government access to private electronic communications, out of date. ECPA was enacted in 1986, long before individuals and companies connected with each other electronically and stored information through email and in the cloud. Today’s society communicates in a dramatically different manner than in 1986, with an increasing amount of data stored digitally with third party providers, including emails and other date stored in the cloud.
Unfortunately, ECPA does not prohibit access to user communications and information stored online without a warrant if the item had been marked “read” or opened, or if it is older than 180 days. In those cases, only a less-strict subpoena is required for government entities to read user emails as part of an investigation. However, because most users now store information and emails with third-party providers online using cloud computing providers, it makes little sense to treat this information differently based whether the item’s status is marked as “read” or dated more than 180 days.
Last Congress, the House of Representatives passed H.R. 699, the Email Privacy Act, which would have improved ECPA and provided much needed clarity over warrant requirements for law enforcement and other government entities wishing to retrieve electronic communications, including a requirement for a warrant to access electronic communications, including email from third party providers. H.R. 699 had 314 cosponsors in the House of Representatives, and it passed the House unanimously by a vote of 419-0. However, the Senate did not bring the legislation to the floor for consideration, and it failed to become law.
On January 9, 2017, H.R. 387, the Email Privacy Act was reintroduced by Reps. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.), joined by original cosponsors, House Judiciary Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.), as well as Reps. Doug Collins (R-Ga.), Will Hurd (R-Texas), Ted Poe (R-Texas), Suzan DelBene (D-Wash.), Jerrold Nadler (D-N.Y.), and Judy Chu (D-Calif.).
The Council for Citizens Against Government Waste looks forward to speedy passage of H.R. 387, the Email Privacy Act in the House of Representatives, followed by prompt consideration in the Senate.