Senate committee votes to enhance email privacy

A law from 1986 still governs electronic privacy

By Alex Halperin
November 30, 2012 2:00AM (UTC)
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The Senate Judiciary Committee took a step today to bring email privacy laws in line with current technology, voting to update the Electronic Communications Privacy Act (ECPA) of 1986. According to EPCA, law enforcement has far broader privileges to dip into private email than old-fashioned letters. According to The Hill:

Police only need an administrative subpoena, issued without a judge's approval, to read emails that have been opened or that are more than 180 days old. Police simply swear an email is relevant to an investigation, and then obtain a subpoena to force an Internet company to turn it over.

By this standard, emailed bank statements, health records and other supposedly confidential information is much more vulnerable than the same information sent through the postal service.


The amended law, written by Senate Judiciary Committee Chairman Patrick Leahy, D.-Vt., requires a search warrant based on probable cause to access a citizen's private email. Leahy, an early adopter of a sort, also wrote the original 1986 act, which dates to almost a decade before the World Wide Web.

Huffington Post reports:

The Sixth Circuit Court has ruled that emails should be protected by the Fourth Amendment's warrant requirements after all. But the reach of the Sixth Circuit's ruling is unclear. Law enforcement generally assumes it only needs a subpoena -- its own say-so -- to download your messages.

These days, said Chris Calabrese, legislative counsel for the American Civil Liberties Union, "basically all the interesting stuff that you're saving is largely accessible without a warrant." That includes non-email content stored in the cloud.

"ECPA was passed in 1986," he said. "Hasn't been updated since then. So you've got 1986 law trying to track to 2012 technology -- and that's just very difficult to do."

Don't exhale just yet. Leahy told the Hill that the full Senate is unlikely to vote on the law until next year.

Alex Halperin

Alex Halperin is news editor at Salon. You can follow him on Twitter @alexhalperin.

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