Legislation requiring government agencies to obtain a warrant before accessing someone’s email records has been reintroduced to Congress this week for the third consecutive legislative term.
The Email Privacy Act seeks to fix a loophole in the Electronic Communications Privacy Act (ECPA), a 1986 bill that enables law enforcement officials to access any type of electronic communication (emails, Facebook messages, Dropbox files, etc.) without a warrant as long as it was over 180 days old. The ECPA, now thirty years old, is notably technologically outdated, as it was passed before the advent of the cloud when companies rarely kept electronic records that were over six-months old.
The bill has widespread bipartisan support and is led by sponsors from both political parties. Representatives Kevin Yoder, a Republican from Kansas, and Jared Polis, a Democrat from Colorado, introduced the bill again on Monday.
The bill is also a favorite of technology industry groups and activist organizations.
“It’s time for Congress to put an end to a glaring loophole in privacy law,” writes Kate Tummarello, a member of the Electronic Frontier Foundation’s (EFF) Activism Team, in a blog post on the organization’s website. “Thanks to the wording in a more than 30-year-old law, the papers in your desk are better protected than the emails in your inbox.”
Federal agencies, on the other hand, have voiced their disapproval of the legislation and have pushed for the continued right to access electronic communication without the need for a warrant.
The bill originally failed in the 113th Congress (2013-2014) and never made it out of the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations. The bill was reintroduced in the 114th Congress (2015-2016) and eventually garnered more co-sponsors than any other bill that year. It unanimously passed the House Judiciary Subcommittee and then, again unanimously, passed the House in April, 2016.
The legislation lingered in the Senate that year, however, and never passed the Senate Judiciary Committee. The lead co-sponsors of the Senate legislation -- Senators Patrick Leahy, a Democrat from Vermont, and Mike Lee, a Republican from Utah -- eventually withdrew the bill from consideration after a number of amendments suggested by their Senate colleagues weakened the original intention of the bill.
Senator John Cornyn, a Republican from Texas, proposed an amendment that would allow the FBI to obtain email records without a warrant in terrorism or intelligence-related cases. Senator Jeff Sessions, a Republican from Alabama and the President-elect’s choice as the new Attorney General, suggested an amendment that would exempt federal agents from obtaining a warrant if the government says an emergency situation exists.
Congress will likely need to act quickly if they would like the bill to pass in its current form, especially considering the president-elect’s strong stance against Apple during the company’s email encryption case last year.