Update: The bill, S. 607, passed out of the Senate Judiciary Committee on a voice vote. It will now go to the Senate floor for a final vote on the bill.
This week a wide range of civil liberties groups and companies demanded the Senate Judiciary Committee update email privacy law, the Electronic Communications and Privacy Act (ECPA). The bill, S. 607, introduced by Senators Leahy and Lee, aims to ensure a warrant protection for all private online messages. ECPA, passed in 1986, purported to allow the Department of Justice (DOJ) access to private communications, including emails and private Facebook messages, with a only subpoena. EFF has long argued, and many courts have agreed, that a warrant is always required. If these same messages were written on paper, the law is clear that the government would need a probable cause warrant before being allowed access. The committee will meet Thursday to decide on whether or not to move the bill forward.
The coalition, which includes EFF, is composed of groups ranging from the Heritage Foundation to the ACLU. The letter supports the bill and urges that the Senate Judiciary Committee vote the bill forward so that it can make its way to the full Senate for final passage. The bill is sponsored by Senators Leahy and Lee and mandates the government obtain a warrant for access to private online communications. The letter notes that the bill:
would create a more level playing field for technology. It would cure the constitutional defect identified by the Sixth Circuit. It would allow law enforcement officials to obtain electronic communications in all appropriate cases while protecting Americans’
constitutional rights.
The bill is widely expected to pass out of committee since the Sixth circuit court ruled in 2006 the "180 day rule" is unconstitutional and that users have an expectation of privacy in their email regardless of age. In a hearing a few weeks ago, the DOJ conceded that it would obtain a warrant instead of a subpoena for private messages older than 180 days. The DOJ's action is an encouraging move; however, more could be done.
Right now the proposed update only ensures a warrant requirement for private online communications. But what's missing is a suppression remedy. In other words, even if law enforcement got hold of your email without a warrant in violation of the revised law, nothing would prevent that illegally obtained evidence from being admitted in a criminal trial.
It's great to see Congress moving on such an important issue, but a suppression remedy would further strengthen the bill. EFF looks forward to the bill advancing in the Senate and will be watching it closely. Tell your Congressmen now to protect your digital rights by updating ECPA.
