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Bipartisan bill seeks to enact Email Privacy Act
On January 9, Congressmen Kevin Yoder (R-KS) and Jared Polis (D-CO) reintroduced the Email Privacy Act, which seeks to update the Electronic Communications Privacy Act (ECPA) enacted in 1986. Under the ECPA, the government requires a probable cause warrant to access electronic communications stored on third-party service providers that are less than 180 days old or unopened. The government may obtain through a subpoena electronic communications that are opened or more than 180 days old. The Email Privacy Act would require all governmental agencies to obtain a warrant to search Americans’ online communications, regardless of when the e-mail was crafted. This legislation is the latest initiative among the many calls to update the ECPA.
The Email Privacy Act received bipartisan support last year and passed the House of Representatives in April 2016 by a 419–0 vote. The Senate, however, failed to act on the bill before the 114th Congress came to a close. In his press statement upon the legislation’s reintroduction last week, Congressman Yoder wrote: “Let’s give the Senate ample time to act, because more than 30 years has been long enough for Congress to wait on this. It’s simple, in 2017, if the federal government wants to access Americans’ digital content, it must get a warrant.”
The Email Privacy Act seeks to affirm that Americans have a reasonable expectation of privacy in their e-mail accounts and content stored online. The government will be expected to show probable cause to compel service providers to disclose any communications or their means of storage. The sponsors of the legislation stress that it still preserves the legal tools necessary to conduct criminal investigations and protect the public, and nothing in the bill alters the current warrant requirements under the Wiretap Act, Foreign Intelligence Surveillance Act or any other law.
We will monitor the Email Privacy Act in Congress this term and report back on any significant developments as it is considered for passage in both houses.


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