After unanimously passing the House of Representatives, the Email Privacy Act has stalled in the Senate as politicians and digital organizations debate an amendment that would expand law enforcement's access to email records.
The Email Privacy Act (H.R. 699) aims to close a loophole in the 1986 Electronic Communications Privacy Act (ECPA), and align the law with technology advances over the past 30 years.
Electronic communications providers, such as Google or Facebook, can currently be forced to turn over any communication more than 180 days old with a subpoena, per the ECPA’s regulations.
The 1986 act was originally passed at a time when technology companies did not keep extensive records, but the rise of cloud storage has made the 180-day policy antiquated. The Email Privacy Act would require a warrant to be obtained as opposed to a subpoena, which would require proof of probable cause and would be more difficult to obtain.
Law enforcement can still access a customer’s contact and payment information, however, with only a subpoena.
Led by Representatives Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.), the Email Privacy Act was unanimously approved by both the House Judiciary Committee and the House of Representatives – setting the stage for a Senate vote.
The two-year old bill finally had its day at the Capitol, but further movement has been stymied by a carve-out requested by the Federal Bureau of Investigation (FBI).
Senator John Cornyn (R-Texas) suggested an amendment that would allow the FBI to obtain email records without a warrant in terrorism or intelligence-related cases. The amendment would expand the National Security Letter (NSL) statue, an administrative subpoena issued by the United States federal government that does not require a judge’s approval.
In a strong showing against the suggested amendment, more than 30 technology companies and political organizations signed a letter in opposition to the expansion of NSL use.
“The civil liberties and human rights concerns associated with such an expansion are compounded by the government’s history of abusing NSL authorities,” states the letter. “In the past ten years, the FBI has issued over 300,000 NSLs, a vast majority of which included gag orders that prevented companies from disclosing that they received a request for information.”
Letter co-signers included leading organizations such as the American Civil Liberties Union and Human Rights Watch, alongside technology companies including Google, Facebook and Yahoo.