U.S. Lawmakers Reintroduce E-mail Privacy Act

    Feb 08, 2017

    A bipartisan group of lawmakers has reintroduced the Email Privacy Act (H.R. 387), which would require all law enforcement and government agencies to obtain a warrant before searching someone’s digital records, no matter when those records were created. The bill unanimously passed the House last year but stalled in the Senate.

    This law would update the 1986 Electronic Communications Privacy Act (ECPA) and modernize U.S. digital privacy laws by establishing protections against warrantless searches of private e-mails. Passed in 1986, the ECPA is the main statute governing law enforcement access to e-mail. But it includes a loophole that allows the government and law enforcement to search any e-mail older than 180 days stored on a third-party server, such as Google or Yahoo, without a warrant.

    Federal agencies, which have heavily relied on keeping the outdated ECPA law, have pushed for the law to remain unchanged.

    Mary Jo White, head of the Securities and Exchange Commission (SEC), told the head of the Senate Judiciary Committee that the warrant requirement would block the SEC from obtaining digital content from service providers. She asked that the government give the SEC the power to compel e-mail providers without a warrant. By extension, this also would give federal agencies the right to demand user e-mails from providers without a warrant.

    The Email Privacy Act was introduced by Rep. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.), with the backing of Rep. Suzan DelBene (D-Wash.). The bill’s supporters include the ACLU, Center for Democracy and Technology, Electronic Frontier Foundation, Amazon, Apple, Facebook, Google, Microsoft, and Twitter.

    “As a result of Congress’s failure to keep pace with technological developments, every American is at risk of having their emails warrantlessly searched by government agencies,” Rep. Polis said. “The Email Privacy Act will update, and bring our archaic laws into the 21st century, and protect Americans’ Fourth Amendment privacy rights, whether they’re communicating through pen-and-paper mail or email. Americans justly demand this level of privacy, and I remain confident that the bill will swiftly pass Congress.”

    Both House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) are original cosponsors of the bill.

    According to Yoder’s website, the legislation was carefully drafted through negotiations with the House Judiciary Committee, industry stakeholders, law enforcement, and civil liberties groups.

    “Technology continues to develop at warp speed, but unfortunately U.S. laws to protect privacy remain woefully outdated. It is long due for Congress to pass legislation that would require the government to obtain a warrant and provide notice before they can collect sensitive information, like emails or documents stored in cloud services,” said ACLU’s Neema Singh Guilani. “We applaud Rep. Polis and Rep. Yoder for their tireless efforts to advance the Email Privacy Act and ensure that Americans’ Fourth Amendment rights are protected in the digital age.”

    According to a press release from Yoder, the Email Privacy Act would:

    • Affirm that Americans have a reasonable expectation of privacy in their e-mail accounts and other personal and professional content stored online.
    • Require the government to get a search warrant based on a showing of probable cause in order to compel a service provider to disclose communications that are not readily accessible to the public – regardless of the age of the communications or the means of their storage.
    • Preserve the legal tools necessary to conduct criminal investigations and protect the public. (Nothing in the bill alters warrant requirements under the Wiretap Act, the Federal Intelligence Surveillance Act, or any other law).

    During the last Congress, the Email Privacy Act garnered more than 300 co-sponsors and unanimously passed the House of Representatives 419-0. However, the Senate failed to act before the 114th Congress came to a close.


    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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