Legal Issues

Who Doesn’t Want to Close the E-Mail Privacy Loophole?


Right now, law enforcement officials who want to access private e-mails more than 180 days old can do it legally without any oversight requirement, like obtaining a warrant. That’s because of a loophole in the Electronic Communications Privacy Act of 1986, a bill that passed years before the invention of the World Wide Web and failed to anticipate the dramatic transformation in how people use technology to send messages to one another.

For years one of the ECPA’s co-authors, Democratic Senator Patrick Leahy of Vermont, has been trying to amend the law. His bill passed the Judiciary Committee in November 2012 and again in April 2013, but it hasn’t received a Senate floor vote. Now the best chance to advance the issue could come from the gridlocked House, where the ongoing national debate about privacy is scrambling standard partisan divisions.

Earlier this week, Republican Kevin Yoder of Kansas and Democrat Jared Polis of Colorado said their Email Privacy Act has crossed a key threshold, adding its 218th co-sponsor—enough to give the bill a majority if it’s brought to a vote on the House floor. “Ensuring e-mails are covered under the Fourth Amendment and protected from warrantless searches,” Yoder said in a statement, “is a common-sense issue that unites both parties.”

The Yoder-Polis bill would restrict the release of customers’ information by Internet providers and generally require police to obtain warrants before gaining access to private e-mails—just as they must before intercepting physical pieces of mail. The prospect of telecommunications providers forking over extensive consumer information isn’t merely speculative: Details released by seven carriers revealed they’d answered more than a million law enforcement requests for customer records, including text messages.

For those hoping Edward Snowden’s revelations about the extent of the government’s spying on Americans have permanently changed the politics of privacy, this – like last night’s surprise House passage of an amendment that would defund two so-called surveillance “backdoors” – is a positive sign. After all, when Democrats and Republicans have come together on past bills, it’s often been to pass legislation opposed by civil liberties advocates—from 2001’s USA Patriot Act (99 to 1 in the Senate) to the National Defense Authorization Act for Fiscal Year 2012 (93 to 7). “I am thrilled,” said Polis in an e-mailed statement, “that a majority of the House has now recognized that the government has no more right to read our e-mails than they do our paper mail or listen to our phone calls.”

In 2011 testimony, a Department of Justice official urged (PDF) Congress to “consider carefully the adverse impact on criminal as well as national security investigations” if warrants were required for accessing e-mails. But the White House’s Big Data: Seizing Opportunities, Preserving Values report, released last month—in the wake of the Snowden uproar—takes a somewhat more measured tone: “In considering how to update” the 1986 law, it states (PDF), “there are a variety of interests at stake, including privacy interests and the need for law enforcement and civil enforcement agencies to protect public safety and enforce criminal and civil law.”

Eidelson is a reporter for Bloomberg Businessweek in Washington.

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