Warrant-less email snatching by cops, Feds under threat by draft law

Proposed privacy act clears committee stage yet future is uncertain

The US House Judiciary Committee has unanimously approved the Email Privacy Act (EPA) – which will require the police and Feds to get a warrant before searching email accounts.

Under the current rules established by the 1986 Electronic Communications Privacy Act (ECPA), officers and agents only need a subpoena, which can be obtained without judicial review, to access any email stored on an external server that has been read or which is more than 180 days old, although emails stored on a personal computer require a warrant.

In the cloud age, that means pretty much everything is up for grabs and the cops and g-men have become used to just taking everything. This is an increasing problem for cloud providers, since the Feds have decided that if the data they want resides overseas it's also fair game – an attitude Microsoft is currently fighting.

"The Electronic Communications Privacy Act of 1986 is a decades-old, complex statute that governs the collection of vital evidence in a wide array of investigations. Reforming this outdated law has been a priority for me as chairman of the House Judiciary Committee and I have worked with members and stakeholders for years to bring this law into the 21st century," said Representative Bob Goodlatte (R‑VA).

Under the new EPA legislation, Microsoft and any other cloud provider would be entitled to ask for a warrant from law enforcement before handing over a subject's emails. In addition, police must inform a suspect within 10 days that their communications have been taken, unless a court agrees otherwise.

However, a last minute amendment killed the requirement for police notification, but instead companies will be allowed to tell their customers if they are under investigation, again with the option for a court to forbid this.

The language of the new bill was approved by a straight 28-0 vote and the legislation has huge support in the House of Representatives, with 315 cosponsors on the floor. As such it is almost bound to pass, if the Republican-controlled House will allow it to go for a vote.

"EFF [Electronic Frontier Foundation] has pushed for an update to ECPA for over 6 years as part of the Digital Due Process Coalition, which is comprised of civil society groups and companies like the ACLU, Google, and Facebook," the digital rights group said.

"We are proud to support Representative Goodlatte in updating ECPA. And we urge the Senate to take up the amended bill and pass it without any changes once the full House votes on it."

While the bill should pass the House handily, getting it through the Senate will be a tougher task. Too many special interests are involved and the EPA could fail, as many other amendments to ECPA have done in the past. ®

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