Yesterday, the House of Representatives unanimously passed H.R. 387, the Email Privacy Act which updates the Electronic Communications Privacy Act (ECPA) to require a warrant to retrieve user communications from service providers.
In 1986, Congress enacted ECPA to both protect the privacy of an individual’s electronic communications and provide the government with a lawful means for accessing these communications from service providers if sufficient process is followed. Under ECPA, a warrant was required only if the content has been in “electronic storage”for 180 days or less, while older records could be obtained by a subpoena.
In 2010, the Sixth Circuit held that the Fourth Amendment prevents law enforcement from obtaining stored email communications without a warrant issued based on a showing of probable cause. United States v. Warshak, 631 F.3d 266 (2010).
Under the House-passed Email Privacy Act,
a governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication that is in electronic storage with or otherwise stored, held, or maintained by that service only if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) that—
“(1) is issued by a court of competent jurisdiction; and
“(2) may indicate the date by which the provider must make the disclosure to the governmental entity.
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.
A similar bill passed the House last Congress, but got bogged down in the Senate when President Trump’s Attorney General nominee, Senator Jeff Sessions, sought to weaken the bill. It is unclear whether an Attorney General Sessions would urge President Trump to oppose the bill.