A bill set to update online privacy laws dating back three decades just cruised through the House by unanimous vote for the second time. The bipartisan bill known as the Email Privacy Act (H.R. 387), introduced by Colorado Rep. Jared Polis and Kansas Rep. Kevin Yoder, would require the government to seek a warrant in order to access the email of American citizens.
As it stands, ambiguity surrounding the Electronic Communications Privacy Act (ECPA) — a law passed in 1986 — lets the government exercise warrantless searches if emails are more than 180 days old and live on third-party servers.
Last year, the same bill passed in the House before stalling out in the Senate, partly at the hands of Trump-appointed attorney general and then Senator Jeff Sessions from Alabama. Last June, Sessions proposed an amendment to the reinvented ECPA that would create exceptions for “emergency disclosures.” That surveillance-friendly loophole was just one of the tweaks that caused the bill to stall out before it could come to a vote.
Following the vote, Google Director of Law Enforcement and Information Security Richard Salgado issued a statement praising the House and urging the Senate to seize the “historic opportunity” for reform:
“The Email Privacy Act updates the Electronic Communications Privacy Act (ECPA) to require the government to obtain a warrant before it can compel companies like Google to disclose the content of users’ communications. Since 2010, Google has testified before Congress four times in support of this reform, which will protect all users, and we are proud of our efforts…
This Act will fix a constitutional flaw in ECPA, which currently purports to allow the government to compel a provider to disclose email contents in some cases without a warrant, in violation of the Fourth Amendment. The Email Privacy Act ensures that the content of our emails are protected in the same way that the Fourth Amendment protects the items we store in our homes.
This is consistent with the practice around the country already and what the Constitution requires; the Sixth Circuit Court of Appeals concluded in 2010 that ECPA is unconstitutional to the extent it permits the government to compel a service provider to disclose to the government a user’s electronic communications content without a warrant. Today’s vote demonstrates that this conviction is widely shared.”
In a statement on the bill, the ACLU’s Neema Singh Guliani also commended the House for once again passing the Email Privacy Act and implored the Senate to do the same:
“Last year, this bills’ progress was derailed by Senate efforts to water down its provisions and attach amendments that would have weakened Americans’ privacy. We urge the Senate to not repeat past mistakes; instead it should act quickly to pass legislation that ensures that Americans’ Fourth Amendment rights are protected in the digital age.”
With Sessions out of the way, the Email Privacy Act may find less friction in the Senate — but in 2017’s uncertain political climate, that doesn’t exactly have digital privacy advocates resting easy.