E-Mail Privacy Bill Clears Senate PanelMeasure Would Require Warrant to Access Personal E-mails
A bill aimed at strengthening e-mail privacy protections cleared the Senate Judiciary Committee April 25. But several senators said they agreed with the Securities and Exchange Commission chair that the bill could hinder investigations, and they indicated that they'd seek to amend the legislation on the Senate floor.
In the age of cloud computing, the Electronic Communications Privacy Act Amendments Act of 2013 - or S. 607 - would update the 27-year-old Electronic Communications Privacy Act by requiring the government to get a search warrant to access personal e-mails and other digital content held by third-party service providers.
Existing law, enacted in an era when lawmakers couldn't imagine a world where electronic content could live seemingly forever on servers scattered around the globe, requires a warrant to access e-mails that are less than six months old. ECPA, as current law in known, allows authorities to access older messages as well as opened e-mail with a subpoena, which doesn't require a judge's approval.
But in a letter to the committee, read by the panel's ranking member, Sen. Charles Grassley, R-Iowa, SEC Chairwoman Mary Jo White said the bill could adversely affect the ability to protect investors and assist victims in security fraud. White pointed out that most SEC investigations are civil actions, not criminal ones, in which warrant aren't available, effectively limiting enforcement. The SEC chair suggests the bill be amended to create an equivalent of a judge-issued criminal search warrant for civil investigations.
Committee Chairman Patrick Leahy, the Vermont Democrat who's the bill's chief sponsor, said he would work with other senators to address their concerns, but argued that the bill would not impede criminal and civil investigations. He said the law would make the requirement for a warrant uniform regardless the age of an e-mail message, making enforcement consistent. "I yield to nobody in my support of law enforcement. I'm proud of my former career in law enforcement," says Leahy, a onetime Vermont state attorney. "But you also have to balance your [privacy] rights."
S. 607 would not prohibit criminal and civil investigators who obtain subpoenas from gaining access to non-content information such as routing data, customer names and session records. The bill would allow federal agencies to compel service providers, pending issuance of a court order, to prevent users who are targets of criminal and civil investigations from deleting their e-mails
Besides requiring a warrant to access e-mails, the bill, if enacted, would prohibit providers such as Facebook, Gmail and Twitter, from voluntarily disclosing the contents of customers' e-mails or other communications. The measure also would require law-enforcement agencies, in most instances, to notify within 10 days individuals that their e-mails are being search.