Congress Renews Push to Require Search Warrants for Email Snooping

Mirror bills to update the Electronic Communications Privacy Act will land in both chambers on Wednesday.

National Journal
Feb. 3, 2015, 2:35 p.m.

House and Sen­ate law­makers are ex­pec­ted to re­in­tro­duce bi­par­tis­an le­gis­la­tion on Wed­nes­day that would re­quire law en­force­ment to ob­tain a search war­rant be­fore ac­cess­ing the con­tent of private emails.

The Email Pri­vacy Act, sponsored by Reps. Jared Pol­is and Kev­in Yo­der, is land­ing with more than 220 co­spon­sors, mean­ing it already has the back­ing of more than half of House mem­bers. Sens. Patrick Leahy and Mike Lee are also slated to re­in­tro­duce their mir­ror ver­sion of the bill, with 6 oth­er Sen­ate co-spon­sors.

The com­pan­ion bills, which seek to up­date the con­tro­ver­sial 1986 Elec­tron­ic Com­mu­nic­a­tions Pri­vacy Act, or ECPA, en­joyed wide­spread sup­port last year among the tech in­dustry and pri­vacy ad­voc­ates, but failed to gain enough trac­tion to move for­ward in the wan­ing months of 2014.

Fed­er­al law cur­rently does not re­quire au­thor­it­ies to get a war­rant to read emails or oth­er com­mu­nic­a­tions stored on­line — such as doc­u­ments kept in a cloud ser­vice — if they are more than 180 days old. In­stead, only a sub­poena is ne­ces­sary.

Boost­ers of the bills say that they are only look­ing to mod­ern­ize a severely out­dated law that was craf­ted long be­fore the de­vel­op­ment of most of today’s In­ter­net ser­vices. While EPCA places war­rant lim­it­a­tions on phone wireta­ps and the sur­veil­lance of some di­git­al com­mu­nic­a­tions, emails are of­ten con­sidered ex­empt.

“Amer­ic­ans are stunned, my con­stitu­ents are stunned, when they hear that without a war­rant, without no­tice, without due pro­cess, that [law en­force­ment] can look at their emails, look at their con­tent in the cloud “¦ to build a case against them,” said Yo­der, a Kan­sas Re­pub­lic­an.

Pol­is, a Col­or­ado Demo­crat, ad­ded he was con­fid­ent the bill could ac­crue the sup­port of two-thirds of the House and ul­ti­mately force lead­er­ship to bring the bill up for a sus­pen­sion vote.

Al­tern­at­ives are already in the off­ing. Earli­er this week, Rep. Zoe Lof­gren, D-Cal­if., and nine co­spon­sors in­tro­duced her own bill that would also re­quire a war­rant to ac­cess email con­tent. But un­like the of­fer­ing from Pol­is and Yo­der, Lof­gren’s bill would also force au­thor­it­ies ob­tain a war­rant be­fore they could com­pel a ser­vice pro­vider to hand over a cus­tom­er’s loc­a­tion data.

Yo­der and Pol­is de­clined to call Lof­gren’s of­fer­ing a com­pet­ing meas­ure — and both voiced sup­port for her de­sire to re­quire war­rants for loc­a­tion data.

Lof­gren also at­temp­ted to down­play the sug­ges­tion that she was of­fer­ing rival le­gis­la­tion.

“[Pol­is and Yo­der] have made an as­sess­ment that this is the best they can do,” Lof­gren said. “We’ll find out if they’re right. I’m not hos­tile to their ef­forts.”

Still, Pol­is and Yo­der’s bill will also have to jockey with a crowded plate of di­git­al pri­vacy bills that are be­ing in­tro­duced in the new Con­gress. The meas­ure may also risk be­ing shelved in fa­vor of ef­forts to re­form the Na­tion­al Se­cur­ity Agency bulk sur­veil­lance of U.S. call data — a high-pro­file is­sue that faces a set dead­line when the Pat­ri­ot Act ex­pires later this year.

“We see this is­sue as, frankly, much worse than the NSA scan­dal,” Yo­der said. “There are people who are on both sides of the NSA bill who are united on our bill.”

Yo­der ad­ded that already the bill was fa­cing “sig­ni­fic­ant op­pos­i­tion” from the White House, which has been re­luct­ant to sup­port ECPA re­form.

Last month, Apple, Google, and more than 70 oth­er tech com­pan­ies and di­git­al-rights ad­vocacy groups sent let­ters to the Sen­ate and House Ju­di­ciary lead­ers last week ur­ging swift pas­sage of the bills.

This art­icle has been up­dated to re­flect the num­ber of co-spon­sors that signed onto the Sen­ate bill.

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