Nathan Leamer writes:
With its passage of the USA FREEDOM Act earlier this month, Congress declared a commitment to restore privacy protections that many feel have been violated. But civil libertarians and technology companies recognize there remain a number of other significant challenges to citizens’ Fourth Amendment protections and at the top of nearly everyone’s list is email privacy reform.
Last Congress, Reps. Kevin Yoder, R-Kan., and Jared Polis D-Colo., introduced H.R. 1852, the Email Privacy Act. The authors recruited 272 cosponsors but ultimately was unable to secure a floor vote in the U.S. House.
Undeterred, the bipartisan duo earlier this year introduced the Email Privacy Act. This time around, H.R. 699 has already received a flood of support from members of Congress. With 284 co-sponsors, it already has support of the majority of the House, and is the most-supported bill not yet receive a hearing, much less a vote.
The Email Privacy Act would update the Electronic Communication Privacy Act of 1986 to require government agents obtain a warrant before accessing the content of private emails, texts or other digital correspondence. It essentially would treat all emails, regardless how old, with the same privacy protections currently granted to physical letters in a person’s cabinet.
Emails and other forms of electronic communication are currently protected under ECPA, but it has not been updated since 1986. Though it was remarkably forward-looking for its time, technology has advanced dramatically and ECPA has been outpaced. The law allows digital communications to be searched and seized without a warrant if they are more than 180 days old. Over the years, courts have issued inconsistent interpretations of the law, creating uncertainty for service providers, law-enforcement agencies and for the hundreds of millions of Americans who use the Internet in their personal and professional lives.
There’s really only been one significant hang-up with the Email Privacy Act. Civil regulators like the Securities and Exchange Commission insist they need the authority demand the contents of electronic communications without a warrant. SEC Chairwoman Mary Jo White has expressed that requiring warrants to obtain emails could impede financial-fraud investigations.
These concerns apparently have some sympathy in the Senate, where a companion bill by Sens. Mike Lee, R-Utah, and Patrick Leahy, D-Vt., also is awaiting action. In many respects, civil agencies and law enforcement are working against civil libertarians in ways similar to when security hawks lined up against privacy advocates in the USA FREEDOM Act debate.
But after a long wait, the landscape might be changing. The House Judiciary Committee recently convened a “listening session” to allow members of Congress to present ideas related to criminal-justice reform. Rep. Yoder took the opportunity to explain that, if Congress was interested in criminal justice reform, they should look at the disparity in Fourth Amendment treatment of paper versus digital correspondence. Others on the committee appeared sympathetic to his arguments, which makes sense, when you consider that 23 of the panel’s 39 members already are cosponsors of the bill.
In a National Journal article last week, Yoder detailed ongoing discussions with House Judiciary Chairman Bob Goodlatte, R-Va., (not a cosponsor), who described ECPA reform as being “on his to-do list” as well as noting that there may be “some potential modifications to the end product.”
It is possible email privacy is next on the “to-do list.” There has been chatter on the Hill that the legislation could receive committee and House floor action in July, with Politico Morning Tech reporting Friday:
The House Judiciary Committee is planning to mark up a bill to update the nation’s email privacy law before the August recess, according to sources on and off Capitol Hill.
The panel hasn’t picked a specific date for the vote, but the plan is to mark up a measure from Reps. Kevin Yoder and Jared Polis that modernizes the decades-old Electronic Communications Privacy Act, the sources said.
Over the next few weeks, we’ll see whether a clean version of the bill will move forward or whether it will be weakened with carve-outs for the SEC or other federal departments.
From my vantage point, Republican leadership would be wise to note that the 284 cosponsors endorsed a strong bill with no indication they would tolerate a weakened product. Passing the Email Privacy Act would restore confidence and security to Americans, while providing clarity to tech businesses trying to develop innovative new services and compete in a global marketplace.