Email Privacy Act: Updating Decades-Old Legislation to Account for Cloud-Stored Data

A bill making its way through Congress may finally remedy legislation drafted three decades ago -- that couldn't predict a future of digital mobile devices and cloud-stored data.

by / May 3, 2016

The Email Privacy Act unanimously passed through the House on April 27 and some are likening the bill to a “Digital Fourth Amendment.” The Email Privacy Act, also called H.R. 699, is an amendment to the Electronic Communications Privacy Act of 1986 (ECPA) that would require law enforcement to present a warrant when obtaining a citizen’s cloud-stored data or emails.

The bill still requires Senate passage before it becomes law. Past criminal cases dealing with cloud-stored data were able to draw on no obvious precedent or law, and privacy advocates are applauding Congress for lending clarity to a once-muddy issue.

“The level of bipartisan support for this bill is a reflection of the public’s strong belief that the government must respect and protect privacy rights in the digital age,” said ACLU lawyer Neema Singh Guliani.  “Now it’s the Senate’s turn to pass this important bill and strengthen it by including a requirement that the government inform people when it forces companies to turn over their information.”

Current law requires a warrant for emails less than six months old, but provides warrant-free access to anything older. Emails that have already been opened can be accessed by law enforcement without a warrant, just a subpoena and no judicial review.

"The last time that our email privacy rules were updated, we were dealing with the ‘Macintosh 2’ release,” said Cory Gardner, a Republican senator from Colorado. “ … As this transition from the hard copy world moves to a digital world, these privacy concerns are going to come up more and more.”

Despite ACLU’s support, the new law would leave loopholes for law enforcement to exploit that are inconsistent with legislation governing physical evidence. A “suppression remedy,” for instance, exists for physical evidence illegally obtained by law enforcement. Such evidence is not allowed to be used in a criminal proceeding, but the same type of statute is not present in the Email Privacy Act.

The ACLU is also pushing for an amendment that would provide the public with similar protections on location data for mobile devices. The Department of Justice does not require law enforcement to obtain a warrant to obtain such data from mobile devices today.

The Electronic Frontier Foundation also expressed support for the act, and any other bills that seek to protect citizen data, including the Online Communications and Geolocation Protection Act, a bill designed to protect location data. EFF called the bill a victory after six years of pushing for similar legislation through its membership in the Digital Due Process Coalition, an advocacy group composed of dozens of technology companies and media institutions.

Unanimous passage by the House is an acknowledgment that the previous legislation, drafted three decades prior, could not account for the widespread technological advancements used today. Much of the contention today derives from definitions of “stored” communications versus communications “in transit,” a technical distinction made by the ECPA that no longer seems relevant in the context of ubiquitous digital devices.

The Coalition for Democracy and Technology also gave support to the new legislation in a letter to Congress, stating that although the bill doesn’t include everything the coalition wanted, it’s a commendable first step.

“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,” the letter reads. “We are particularly pleased that the bill does not carve out civil agencies from the warrant requirement, which would have expanded government surveillance power and undermined the very purpose of the bill.”

A clear passage through the House doesn’t necessarily mean the bill will become a law, however, said Sophia Cope, EFF staff attorney.

“Often the Senate doesn’t care what the House does,” Cope said. “[Unanimous passage] does send a powerful message, but I don’t know. It’s just speculation at this point. … Who knows?”

Colin Wood former staff writer

Colin wrote for Government Technology from 2010 through most of 2016.