TECH
03/19/2013 04:43 pm ET

Email Warrants Proposed In Senators' Bipartisan Reforms To ECPA Legislation

NEW YORK -- Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) introduced legislation to strengthen email privacy protections on Tuesday, giving bipartisan flavor to the push to reform the outdated Electronic Communications Privacy Act (ECPA) of 1986.

The combination of Leahy, a Democrat from the Green Mountain State, and Lee, a libertarian-leaning Republican from the West, mirrors a diverse coalition in the House of Representatives that introduced a similar bill earlier this month.

Just as ECPA action heats up, however, a House hearing provided a preview of law enforcement's objections.

Under the law currently in place, law enforcement officials need only a subpoena -- not a warrant -- to access email or other electronic communications stored online that are older than 180 days or have already been opened. That effectively means that if you use web-based cloud email, many or most of the emails in your inbox could be accessed by law enforcement on their say-so.

"No one could have imagined just how the Internet and mobile technologies would transform how we communicate and exchange information today," said Leahy, who originally authored ECPA in 1986, in a statement. "Three decades later, we must update this law to reflect new privacy concerns and new technological realities."

Leahy introduced a similar bill last year, but after passing out of his committee it did not come up for a vote on the Senate floor. Outside of Congress, the American Civil Liberties Union and Americans for Tax Reform launched a new partnership on Monday to push for reform. Online heavyweights like Amazon, Apple, eBay, Google and Twitter all support creating a warrant standard.

Just what kind of an update the law will get, however, will be a topic of debate as legislation moves forward. In a House Judiciary subcommittee meeting on the topic Tuesday, a top Justice Department official admitted there was "no principled basis" to make a distinction between emails that are older than 180 days and more recent ones.

But the official, acting Assistant Attorney General Elana Tyrangiel, also said that while the idea of requiring a warrant for email has "considerable merit," Congress should also consider special cases in which a subpoena could be required instead, such as non-criminal civil rights and antitrust investigations.

Allowing a subpoena in such circumstances, while requiring one for criminal cases, would be "two steps forward and two steps back," Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, told CNET.

Local law enforcement, meanwhile, seems less than thrilled about a toughened warrant standard for emails. Claiming that the debate over ECPA reform "has been largely one-sided to date," Richard Littlehale of the Tennessee Bureau of Investigation warned in the House hearing that "any restriction of law enforcement's access to that information ... may well come at a price, and some of that price could be paid by our most vulnerable citizens."

Perhaps of most concern to civil liberties advocates was Littlehale's apparent suggestion that the warrant requirement would be more palatable if law enforcement had access to other types of data. He said he would like to force cell phone providers to store text message data for investigations, because "text messaging often plays a big role in investigations related to domestic violence, stalking, menacing, drug trafficking and weapons trafficking."

Chris Calabrese, legislative counsel in the Washington office of the ACLU, said his organization opposes that idea.

"Just think about the contents of your text messages and how much sensitive, personal and valuable information is contained there," he said. "Imagine the government turning that into a permanent log that they, or private investigators or divorce attorneys, could look at at any time in the future."

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