Sen. Judic. Comm. Passes Bill Requiring Warrant for Email

The Senate Judiciary Committee today passed a bill, originally proposed by Sen. Patrick Leahy, that would amend the Electronic Communications Privacy Act and require law enforcement to get a search warrant for emails that have been in electronic storage for more than 180 days. (A search warrant is currently required for emails in storage less than 180 days.)

Here is a copy of the bill.

Contrary to Republican disinformation, it would not affect terror cases, since there a provision that explicitly excludes FISA. [More...]

Under current law, via EPIC:

Here's a 2009 Government chart showing the different requirements.

There is a growing consensus that greater protections are needed.

The Electronic Communications Privacy Act (ECPA), which has not had an update since it passed in 1986, specifies that government officials do not need a warrant to access stored email that is over 180 days old. The Department of Justice has also historically argued ECPA grants law enforcement the authority to access opened email without a warrant.

When ECPA was passed in 1986, email storage was much more expensive than it is today. The few people who actually used email would download important messages to their hard drives. Emails that were stored online for more than 180 days were considered abandoned, and therefore did not receive warrant protection. In 2013, users have access to free, nearly unlimited online email storage, rendering the 180-day provision woefully unsuited to the times.

The ECPA has three parts:

  • the Wiretap Act, 18 U.S.C. S. 2510 et seq.,
  • the Pen Register and Trap and Trace Devices Act 18 U.S.C. S. 3121, et seq., and
  • the Stored Communications Act ("SCA"), 18 U.S.C. S. 2701 et seq.

The Stored Communications Act (“SCA”) addresses the ability of governmental entities to compel service providers, such as Twitter and Facebook, to produce content (e.g., posts and tweets) and noncontent customer records (e.g., name and address).

§ 2703 states the procedure federal and state law enforcement officers must follow to compel disclosure of stored communications from network service providers.

The Leahy bill would repeal sections (a)(b) and © of 2703 and eliminate the 180 day rule.

Section 5 of Leahy's bill provides:

Nothing in this Act or an amendment made by this Act shall be construed to apply the warrant requirement for contents of a wire or electronic communication authorized under this Act or an amendment made by this Act to any other section of title 18, United States Code (including chapter 119 of such title (commonly known as the 18 ‘‘Wiretap Act’’)), the Foreign Intelligence Surveillance Act 19 of 1978 (50 U.S.C. 1801 et seq.), or any other provision 20 of Federal law.

More news articles on the bill here and here.

The bill now moves to the full Senate.

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  • Display: Sort:
    Great post. (5.00 / 1) (#1)
    by lentinel on Fri Apr 26, 2013 at 02:49:58 AM EST
    I wonder what the bill's chances are in the Senate.

    Agree w/Lentinel, Thanks, who knew? (none / 0) (#2)
    by vicndabx on Fri Apr 26, 2013 at 10:50:09 AM EST
    What I'd like to know is, what is the requirement for me as the customer to be notified some "governmental entity" is reading my emails?

    Do you send or receive emails? (5.00 / 2) (#3)
    by unitron on Fri Apr 26, 2013 at 06:57:16 PM EST
    If the answer is yes, that's your notification.

    As I mentioned once before (none / 0) (#4)
    by fishcamp on Sat Apr 27, 2013 at 04:02:32 PM EST
    it's quite easy to rid your computer of all your emails after sending them to trash by erasing your computers free space which is where trash goes.  What I didn't realize is every single thing is also in your down loads folder.  So that too must be deleted and I think all that also goes into the HD free space.  With Apple computers you can be selective with what you delete but that would take forever.  In my case the download folder contains everything from 2002 on.  Monday I'm calling my Apple guy and find out about that.  And of course if you have a backup external HD that also needs to be addressed.  

    Erase doesn't usually mean erase... (5.00 / 1) (#6)
    by unitron on Sun Apr 28, 2013 at 01:33:54 PM EST
    ...it just means overwriting the first, at most, few characters of a file and marking those sectors as available--most of the file is still intact and can be retrieved by some software or through a hex dump to another storage medium.

    BTW I also just realized (none / 0) (#5)
    by fishcamp on Sat Apr 27, 2013 at 04:36:36 PM EST
    everything is also in All my files folder too.  Wonder where else it is?

    Eraser (none / 0) (#7)
    by Zorba on Sun Apr 28, 2013 at 02:43:01 PM EST