Email Privacy Act

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The Email Privacy Act is a

federal law was sponsored by Representative Kevin Yoder, a Republican from Kansas, and then-Representative Jared Polis, a Democrat of Colorado. The law is designed to update and reform existing online communications law, specifically the Electronic Communications Privacy Act (ECPA) of 1986.[1][2][3]

In the

116th Congress
(2019–21), the legislation passed the House, but failed to receive a vote in the Senate.

Background and bill provisions

The legislation would require authorities such as the

Securities and Exchange Commission to obtain a search warrant to access emails, data in cloud storage, and other digital communications more than 180 days old.[4][5]

Under current law—the Electronic Communications Privacy Act (ECPA) of 1986—authorities can obtain such data by issuing an administrative subpoena to an Internet service provider, without the need to obtain judicial approval.[4][5][6] The Congressional Research Service reported in 2015 that: "In recent years, ECPA has faced increased criticism from both the tech and privacy communities that it has outlived its usefulness in the digital era and does not provide adequate privacy safeguards for individuals' electronic communications. In light of these concerns, various reform bills have been introduced in the past several Congresses..."[7]

The Email Privacy Act would codify as federal law the decision of the United States Court of Appeals for the Sixth Circuit in United States v. Warshak (2010). In that case, the Sixth Circuit held that the Fourth Amendment to the United States Constitution requires that the government obtain a warrant before accessing emails stored online (e.g., in the cloud).[6][8][9] The Warshak ruling currently applies only to the Sixth Circuit; the Email Privacy Act would extend its rule nationwide.[6][8]

Supporters and opponents

The legislation "is widely supported by the tech industry and privacy advocates."[1]

The Electronic Frontier Foundation has pushed for the legislation for over six years, hailing the House vote in favor of the legislation in 2016 as "a win for user privacy" and urging the Senate to approve it without weakening amendments.[8] The EFF noted, however, that the bill "isn't perfect" because it does not require the government to notify users when the government seeks their data from service providers, which the EFF believes is "a vital safeguard ensuring users can obtain legal counsel to fight for their rights."[8]

A wide array of

expectations of privacy with respect to emails, texts, notes, photos, and other sensitive information stored in "the cloud."[9]

The Digital 4th Coalition—an advocacy coalition consisting of the ACLU, ATR, CDT, and

Heritage Action for America—supports the legislation, creating a website to support the legislation and to urge citizens to push for it. The coalition spans the ideological spectrum from left to right.[10][11]

A public-opinion survey of U.S. registered voters conducted by Vox Populi Polling on behalf of the Digital 4th Coalition found that 77 percent agreed that a warrant should be required to access "emails, photos and other private communications stored online."[12] When respondents heard a summary of the ECPA's provisions, "86 percent said it should be updated, and 53 percent said they'd be more likely to support a candidate who favored 'strengthening online privacy' through reforming the law."[12]

In 2015, the

Obama administration expressed support for reforming and updating the ECPA in response to an online We the People petition that garnered more than 100,000 signatures, although the White House did not express support for any particular reform effort.[13]

The bill faces opposition from some federal agencies, who state that they rely on subpoenas to conduct investigations.[1][12] In Senate committee testimony given in September 2015, Federal Trade Commission officials expressed concern that "recent proposals could impede its ability to obtain certain information" from Internet companies.[12]

113th Congress (2013–15)

The bill failed in the

United States House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations.[14]

114th Congress (2015–17)

In the

House Judiciary Committee and then, on April 27, 2016, unanimously passed the House (419-0).[4][8][15] The passage of the bill in the House was hailed by the New York Times editorial board, which called the bill a "sensible" if imperfect update to privacy law and said that the House vote was a "rare and remarkable display of bipartisanship."[6]

The lead sponsors of the companion Senate legislation, the Electronic Communications Privacy Act Amendments Act of 2015 (S. 356) were Senator Patrick Leahy, Democrat of Vermont, and Senator Mike Lee, Republican of Utah.[4][16] Twenty-five other senators were cosponsors.[16]

After the House passed its bill, Leahy and Lee called upon the Senate to "take up and pass this bipartisan, common-sense legislation without delay."

Open Technology Institute, who urged the Senate to pass the House bill.[18] Six other senators have also offered amendments in the Senate Judiciary Committee,[19] including an amendment by Republican Senator Jeff Sessions of Alabama, which would have exempted federal agents from the requirement to secure a warrant if the government asserts that an emergency situation exists.[20] The Sessions amendment was opposed by advocates for privacy rights, "because it does not require any judicial backstop to review the action afterward to see if the surveillance was warranted and should continue."[20] After the Cornyn and Sessions amendments were offered, the bill's lead Senate sponsors, Leahy and Lee, withdrew the bill from consideration, saying that they feared that the amendments would make "Americans' electronic communication even less private than it is now."[20]

115th Congress (2017–19)

The Email Privacy Act was again introduced in the

115th Congress, with Polis and Yoder again being the lead sponsors of the bill.[21] It passed the House of Representatives (where it had 109 sponsors) on a voice vote on February 6, 2017, but was again expected to encounter Republican opposition in the Senate,[22] and never made it out of Senate committee.[23]

116th Congress (2019–21)

In the

116th Congress, the Email Privacy Act was included as an amendment to the version of the National Defense Authorization Act for Fiscal Year 2019 (NDAA FY 2019) legislation passed by the House of Representatives; the amendment passed on 351–66 vote.[24] However, the provision failed in the Senate, and so the NDAA FY 2019 "passed without EPA's reforms or the broader ECPA Modernization Act of 2017" proposed by Senator Patrick Leahy (D-VT) or Senator Mike Lee (R-UT).[25]

References

  1. ^ a b c Tummarello, Kate (June 18, 2014). "Bill requiring warrants for email searches hits magic number in House". The Hill. Retrieved February 11, 2015.
  2. ^ Wise, Lindsay. "Government wonders: What's in your old emails?". McClatchy. Retrieved February 11, 2015.
  3. ^ Jaycox, Mark (January 23, 2015). "Seventy Public Interest Organizations and Companies Urge Congress to Update Email Privacy Law". Electronic Frontier Foundation. Retrieved February 11, 2015.
  4. ^ a b c d e Dustin Volz, Email privacy bill unanimously passes U.S. House, Reuters (April 27, 2016).
  5. ^ a b c d House Unanimously Passes Email Privacy Act, National Law Review (May 1, 2016).
  6. ^ a b c d The House Votes Unanimously to Strengthen Email Privacy, New York Times (April 29, 2016).
  7. ^ Richard M. Thompson II & Jared P. Cole, Reform of the Electronic Communications Privacy Act (ECPA), Congressional Research Service (May 15, 2015) (republished by Statewatch).
  8. ^ a b c d e Sophia Cope, House Advances Email Privacy Act, Setting the Stage for Vital Privacy Reform, Electronic Frontier Foundation (April 27, 2016).
  9. ^
    Center for Democracy & Technology
    (April 25, 2016).
  10. ^ About Us Archived 2016-05-07 at the Wayback Machine, Digital 4th Coalition.
  11. ^ Drew Clark, With unanimous House passage, Email Privacy Act may become real, Deseret News (May 1, 2016).
  12. ^ a b c d Andrew Peterson, The government often doesn’t need a warrant to get your e-mails. But most think it should, Washington Post (November 30, 2015).
  13. ^ Tim Cushing, White House Vaguely Agrees Outdated ECPA Should Be Reformed But Only With An Eye On The Government's 'Interests', TechDirt (July 28, 2015).
  14. ^ H.R.1852 - Email Privacy Act, 113th Congress (2013-2014).
  15. Govtrack.us
    .
  16. ^ a b S.356 - Electronic Communications Privacy Act Amendments Act of 2015: 114th Congress (2015-2016), Congress.gov.
  17. ^ Mike Masnick, SEC and Chuck Grassley Still Trying To Stop Email Privacy Act That Got UNANIMOUS Support in the House, TechDirt (May 9, 2016).
  18. ^ a b Amir Nasr, Tech, Civil Liberties Advocates Wary of Email Privacy Amendments, Morning Consult (June 2, 2016).
  19. ^ a b Aisha Chowdhry, Email privacy legislation stalls in Senate, Federal Computer Week (May 27, 2016).
  20. ^ a b c Erin Kelly, Senate derails bill to rein in email surveillance, USA Today (June 9, 2016).
  21. ^ Steven Trader, Reps. Reintroduce Widely Supported Email Privacy Act, Law360 (January 9, 2017).
  22. ^
  23. ^ H.R.387 - Email Privacy Act, 115th Congress (2017-2018).
  24. ^ David Ruiz, mail Privacy Act Comes Back, Hopefully to Stay, Electronic Frontier Foundation (May 29, 2018).
  25. Gibson, Dunn & Crutcher LLP
    (January 28, 2019).
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