A bill introduced Tuesday by Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT) would require police obtain a warrant before scouring a suspect's email accounts.
“No one could have imagined just how the Internet and mobile technologies would transform how we communicate and exchange information today,” Leahy said in an advisory. "Privacy laws written in an analog era are no longer suited for privacy threats we face in a digital world. Three decades later, we must update this law to reflect new privacy concerns and new technological realities, so that our Federal privacy laws keep pace with American innovation and the changing mission of our law enforcement agencies."
The Electronic Communications Privacy Act Amendments Act (PDF), which was also introduced in the last Congress, returns right as the Obama administration has signaled readiness to update the Electronic Communications Privacy Act (ECPA) of 1986 by applying the Fourth Amendment's prohibition on unreasonable search and seizure to some emails stored on cloud services.
“Our e-mails contain the most intimate details of our lives and therefore deserve the full protections of the Fourth Amendment,” American Civil Liberties Union (ACLU) attorney Chris Calabrese said in an advisory. “The original ECPA law was passed nearly 30 years ago, before the World Wide Web was even invented and cloud-based e-mail services would have been seen as science fiction. We’re pleased to see bipartisan support for legislation which closes loopholes that allow the government to access years and years of Americans’ communications without any need to prove to a judge that a person is suspected of a crime."
Good news for Leahy and Lee: It appears the Obama administration agrees, at least in principle. Testifying to a House subcommittee on Tuesday, Acting Assistant Attorney General Elana Tyrangiel emphasized the importance of the ECPA's tools for law enforcement, but admitted that the Act needs to change.
"We agree, for example, that there is no principled basis to treat email less than 180 days old differently than email more than 180 days old," she said, according to prepared remarks (PDF) spotted by The Huffington Post. "Similarly, it makes sense that the statute not accord lesser protection to opened emails than it gives to emails that are unopened."
Whether that means the Obama administration will support Leahy's bill remains to be seen, but a serious proposal to strengthen digital privacy rights is sure to have some fans in the activist communities. The bill already enjoys the support of the ACLU.
“When ECPA was enacted, email was primarily a means of communicating information, not storing it," Sen. Lee said. "Today, we use our email accounts as digital filing cabinets, where we store many of the personal documents and sensitive information that the Fourth Amendment was meant to protect. This bill takes an essential step toward ensuring that the private life of Americans remains private.”