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Email Privacy Act Comes Back, Hopefully to Stay

DEEPLINKS BLOG
May 29, 2018

Email Privacy Act Comes Back, Hopefully to Stay

The Email Privacy Act is back. We hope it can stay.

The House of Representatives passed a bill this week called the National Defense Authorization Act (NDAA), which authorizes the nation’s military and defense programs. Earlier in the week, scores of Representatives offered amendments to this must-pass bill in hopes of ensuring that their ideas get a chance to become law.

Rep. Kevin Yoder (R-KS) used this opportunity to include as an amendment the Email Privacy Act, a piece of legislation long-favored by EFF. The Email Privacy Act would codify the rule announced by the Sixth Circuit—and now followed by providers nationwide—that requires government agents to first obtain a probable cause warrant when seeking the content of communications stored by companies like Google, Facebook, Slack, Dropbox, and Microsoft.

On Thursday night, the House approved the NDAA–including the amendment with the Email Privacy Act—in a 351-66 vote. We applaud the House’s inclusion of this important statutory language in the must-pass NDAA.

Rep. Yoder’s amendment, which you can read here, is identical to the Email Privacy Act (H.R. 387) that EFF supported in 2017. The amendment is also a revival of the Email Privacy Act (H.R. 699) that EFF likewise supported in 2016. That bill received unanimous support from the House of Representatives in a 419-0 vote.

This is a battle we’ve fought for years. Rep. Yoder’s amendment is the latest chance for Congress to get it right.

Today, when government agents seek electronic communications from companies and service providers, they don’t actually follow the rules set forth in the 1986 Electronic Communications Privacy Act. While the text of that law splinters warrant protections according to an arbitrary time restriction (emails older than 180 days have no warrant requirement protections; emails newer than 180 days sometimes do) since the Sixth Circuit’s decision in Warshak, providers have required a full search warrant for all email content.

The Email Privacy Act harmonizes the statute with the case law. It provides warrant protections to all emails, chats, and online traded messages sought by government agents from service providers. If any law enforcement agent asks Google, Facebook, Dropbox, Apple, or any other major electronic message handler or cloud service provider for a person’s emails, they first need to obtain a probable cause warrant.

EFF is excited to see the Email Privacy Act pass the House of Representatives again. In the past, Senate Republicans have been extremely resistant to the Email Privacy Act in any form, attaching poison pill amendments to derail prior roads to success. The Senate is currently working on their own version of the NDAA, and EFF will be working to ensure that the Email Privacy Act is included without poison pills in the bill that goes to the President.

As we said before, the emails in your inbox should have the same privacy protections as the papers in your desk.

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