Senate Committee Moves to Protect E-Mail Privacy

Internet privacy

On Friday, the Senate Judiciary Committee passed legislation backed by Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT) that would amend the Electronic Communications Privacy Act (ECPA) to require that law enforcement obtain a warrant before it can search Americans’ e-mails and other online file:

A Senate committee today backed sweeping privacy protections requiring the government, for the first time, to get a probable-cause warrant to obtain e-mail and other content stored in the cloud.

The Senate Judiciary Committee approved the package on a voice vote after about 30 minutes of debate, and sent the measure to the Senate floor, where it faces an uncertain future.

The legislation, (.pdf) sponsored by Sen. Patrick Leahy (D-Vermont), the committee’s chair, and Michael S. Lee (R-Utah) nullifies a provision of federal law allowing the authorities to acquire a suspect’s e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed if the content is 180 days or older.

Under the current law, the 1986 Electronic Communications Privacy Act, the government can obtain e-mail without a warrant as long as the data has been stored on a third-party server — the cloud — for 180 days or more. The government only needs to show, often via an administrative subpoena, that it has “reasonable grounds to believe” the information would be useful to an investigation.

There has been a broad push for ECPA reform. The Americans Civil Liberties Union (ACLU), Americans for Tax Reform (ATR), and Heritage Action for America have formed a coalition, Digital 4th, that is encouraging Congress to make the Fourth Amendment apply online. The coalition praised the passage of the Leahy-Lee legislation in a press release, noting that it “brings much needed parity to our nation’s communication privacy laws.”

“These reforms will help protect individual freedoms and ensure our laws encourage success in America’s technology and cloud computing industries,” noted Dan Holler of Heritage Action in the press release from Digital 4th.

Though not a member of Digital Fourth, FreedomWorks also hailed the legislation. Matt Kibbe, President and CEO of the organization, explained, “The Due Process Clauses in the Fifth and Fourteenth Amendments need a software upgrade.”

“Personal property in the digital space is no different from property in a physical storage space, and Americans should have the right to due process under the law before the government seizes either of them,” Kibbe continued. “Unanimous support from the Senate Judiciary Committee is a great first step to protect Americans’ internet privacy, and we will continue to support Senators Lee and Leahy’s efforts to bring this amendment forward for a full Senate floor vote.”

The Leahy-Lee legislation comes as the Federal Bureau of Investigation (FBI) is seeking more power to read Americans’ e-mail and online chats. The Internal Revenue Service (IRS) has also recently claimed that Americans “do not have a reasonable expectation of privacy” in online communications.

Similar legislation was passed out of the Senate Judiciary Committee last year, but it never came to the floor for a vote. But with more awareness over Internet privacy due to CISPA, which is dead-on-arrival in the Senate, there is hope that the measure will move forward.


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