Under current law, the government or civil attorneys can simply issue subpoenas to force email service providers such as Google or Yahoo to turn over customer emails more than 180 days old. (It’s the same for all electronic communications, including tweets and Facebook posts.) A bill introduced in Congress last year that would require government bodies to obtain warrants to gain such access was defeated, but the Email Privacy Act has been reintroduced in this session of Congress by Rep. Kevin Yoder (R-KS).
Warrants are more difficult to obtain than subpoenas because they require proof of “probable cause.” Attorneys involved in civil litigation can issue subpoenas; only magistrates or judges can issue search warrants. According to The Hill, the expeditiousness of subpoenas was required at a time when storing emails for six months or longer was impractical for ESPs, but with cloud storage that’s no longer the case.
Prospects appear optimistic for passage of the new Email Privacy Act, which would reform the Electronic Communications Privacy Act of 1986. The bill lists the most co-sponsors of any introduced this session—194 Republicans and 115 Democrats—and Judiciary Committee Chairman Bob Goodlatte (R-VA) has promised a markup of the bill in March.
“Over the past several years the Committee has conducted robust oversight of this decades-old law and has worked with stakeholders to identify reform priorities. It’s clear that the law needs to be modernized and updated to ensure it keeps pace with ever-changing technologies so that we protect Americans’ constitutional rights,” Goodlatte said in a statement.
In introducing the bill, Yoder noted that “the last time Congress updated our email privacy laws, we were two years removed from the release of the first Macintosh computer.”
The Obama administration has been supportive of policy changes in this area, but some federal agencies have not. The Securities and Exchange Commission does not have the authority to obtain warrants, and its Enforcement Director Andrew Ceresney complained in a December Judiciary Committee hearing that the Email Privacy Act would impede “the ability of the SEC and other civil law enforcement agencies to investigate and uncover financial fraud and other unlawful conduct.”
Govtrack.us, which follows and rates all Congressional legislation, gives the bill a 25% chance of getting past committee and a 7% chance of being enacted. Those aren’t great odds, but they’re better than the norm. In the 113th Congresss that ran from 2013 to 2015, only 15% of bills made it out of committee and just 3% were passed.