“Congress should amend ECPA to ensure the standard of protection for online, digital content is consistent with that afforded in the physical world -- including by removing archaic distinctions between email left unread or over a certain age,” the report states.
Currently, ECPA treats emails older than six months differently than ones that are newer. The law requires the authorities to obtain a search warrant before accessing emails that are less than six months old. But police and other law enforcement officials can obtain emails older than six months with just a subpoena.
That distinction is critical, because search warrants are harder to get than subpoenas. Judges aren't supposed to sign search warrants without probable cause to believe the material will yield evidence of a crime. But prosecutors can obtain subpoenas simply by showing that an email account might yield information that's relevant to an investigation.
Digital rights advocates have said for years that it doesn't make sense to require warrants only for newer emails. Congress has considered proposals to strengthen email privacy protections, but none have gotten very far.
The White House group that issued today's report says it's time to move forward with revising the law. “Many of the laws governing law enforcement access to electronic information were passed by Congress at a time when private papers were largely stored in the home,” the report states. “With time, some of the lines drawn by the statute have become outdated and no longer reflect ways in which we use technology today.”
The report adds: “Email, text messaging, and other private digital communications have become the principal means of personal correspondence and the cloud is increasingly used to store individuals’ files. They should receive commensurate protections.”
Some privacy advocates cheered that portion of the report, as did the Direct Marketing Association. “ECPA reform would respond directly to the concerns that Americans have about their digital rights being protected from government overreach,” DMA senior vice president of government affairs Peggy Hudson said in a statement. “We look forward to working with the Administration and Congress to protect consumers’ privacy by updating ECPA to close a loophole that currently enables law enforcement to access electronic communications without a warrant.”