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    House of Representatives Approves E-mail Privacy Bill

    May 11, 2016

    Legislation (H.R. 699) to require the government to get a warrant to compel a communications provider to hand over the content of user e-mails was overwhelmingly passed by the U.S. House of Representatives on April 27 despite concerns over the potential impact on government law enforcement capabilities.

    The measure, sponsored by Rep. Kevin Yoder (R-Kan.), addresses the growing concerns of the technology industry and privacy advocates by amending the Electronic Communications Privacy Act of 1986 (ECPA) to require governmental entities to get a search warrant to compel service providers to turn over the contents of customer communications. It does so by repealing statutory language treating e-mails more than 180 days old as abandoned and thus obtainable with a subpoena or court order, rather than a warrant. Protection from disclosure would also be granted to all customer communications “stored, held, or maintained by the provider.”

    “The U.S. Constitution protects Americans’ property from unreasonable searches and seizures and we must ensure that this principle continues to thrive in the digital age,” wrote House Judiciary Committee Chairman Bob Goodlatte (R-Va.) in an online statement. “As technology has far-outpaced the Electronic Communications Privacy Act of 1986, the Email Privacy Act modernizes this decades-old law to establish a uniform warrant requirement to acquire stored electronic communications in criminal investigations.”

    Before passing the bill, the House adopted an amendment to remove a provision requiring law enforcement officials to notify users whose e-mails have been obtained. Instead, language was included to permit communications providers who have been served with a warrant to notify users themselves, except if the government gets a court order blocking or delaying such notification in the interest of preserving the integrity of an investigation or trial. 

    The prospects for enactment are uncertain because of concerns over the potential impact on the ability of government agencies, such as the Securities and Exchange Commission (SEC), to conduct investigations. The SEC uses ECPA authority to issue administrative subpoenas to obtain the content of communications. Subpoena authority would be limited by the legislation to only customer information, such as names, addresses, phone numbers, network addresses, telephone connection records, and payment records. Obtaining the contents of customer communications from a service provider would require a warrant.

    “These reforms would ratify the Sixth Circuit’s decision in U.S. v. Warshak, which held that email content is protected by the Fourth Amendment and that law enforcement access requires a probable cause warrant,” wrote a group of civil society organizations, companies, and trade associations in a letter supporting the legislation. “Moreover, the changes reflect current practices: DOJ and FBI policies already require law enforcement officials seeking content to obtain a search warrant, and many service providers will not relinquish their users’ content without one.”

    Similar bipartisan legislation (S. 356) was introduced in the Senate, where it is awaiting consideration in the Senate Judiciary Committee.

    The Washington Policy Brief is an online advisory that contains brief summaries of recent legislative and regulatory issues that may affect the records and information management profession. Further information about the issue is accessed by clicking on the link provided at the end of each summary.

     

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