Bill to put an end to warrantless federal prying into citizen email data

In 1986 the Electronic Communications Privacy Act (ECPA) (18 USC § 119)  was passed, which offered some basic protections for electronic mail (email).  At the time it seemed an ambitious step forward.  But over time technology advanced, but legislation didn't.

For example under the ECPA, email older than 180 days old is considered "abandoned", allowing the government to demand it without a warrant and with little regard to due process.  In 1986 this wasn't much of an issue as email was seldom stored that long.  Likewise the law has no protection for opened messages.  In today's era of mass email via, Inc. (FB), Google Inc. (GOOG), and other modern internet giants, these oversights represent huge threats to due process.

I. Texas Steps Up, Offering Fresh Protections For Email

Amid a stall in updating the ECPA at a federal level, the state of Texas has stepped in with an ambitious new bill, HB 2268.  That bill states:

An authorized peace officer may require a provider of an electronic communications service or a provider of a remote computing service to disclose electronic customer data that is in electronic storage by obtaining a warrant under Section 5A.

[A] district judge may issue a search warrant under this section for electronic customer data held in electronic storage, including the contents of and records and other information related to a wire communication or electronic communication held in electronic storage, by a provider of an electronic communications service or a provider of a remote computing service described by Subsection (h), regardless of whether the customer data is held at a location in this state or at a location in another state. An application made under this subsection must demonstrate probable cause for the issuance of the warrant and must be supported by the oath or affirmation of the authorized peace officer.

Having passed both the state senate and house without a single "nay" vote, the bill now sits on Governor Rick Perry's (R) desk, awaiting his signature.  

Email will receive fresh protections in Texas [Image Source: CNN]

Assuming Gov. Perry signs it, it would enact unprecedented email privacy protections -- better than those in any other state in the nation currently.

II. Key Ruling Pushes Issue

In other states the situation remains more ambiguous.

In 2010, the Sixth Circuit Court of Appeals decided a critical case on the topic of email privacy -- United States v. WarshakIn that case the Circuit Court -- which sets precedent for Kentucky, Michigan, Ohio, and Tennessee -- decided that federal agents must obtain a warrant to obtain any email regardless of the age or open status, due to the Fourth Amendment protections.

Google has agreed with this decision and is no longer complying with warrantless requests, unless the Supreme Court decides otherwise.

The big question after the Sixth Circuit decision is whether it will be appealed and whether federal investigative agencies will comply with it until the issue was settled at the Supreme Court level.  The ACLU requested information from the U.S. Internal Revenue Service (IRS), the U.S. Federal Bureau of Investigation, and U.S. Department of Justice on whether they were obeying the ruling.  

IRS Building
The IRS recently claimed the Fourth Amendment didn't apply to email.
[Image Source: Bloomberg]

The IRS -- which recently came under fire for scrutinizing political rivals of the Obama administration -- admitted it was not yet in full compliance with the ruling.

III. Pressure is on the Feds to Update the Law 

Amidst the lack of federal action, the American Civil Liberties Union's (ACLU) senior analst, Chris Soghoian, praised Texas's perogative, stating, "Privacy is a special thing in Texas—it goes to the core values of Texas:

It's always good to see states passing pro-privacy legislation because it sends a signal to Congress. It sends a signal to conservative members who might not yet be on board that this is something being supported in their own states and it helps the courts to see that this is a safe space to venture into. When cities and states start protecting e-mail, then judges may feel like there is a reasonable expectation of privacy.

The Electronic Frontier Foundation's (EFF) staff attorney Hanni Fakhoury concurred, stating to ArsTechnica:

It is the first state legislature I'm aware of to change the law this way.  Other states are currently considering similar legislation, including California—where EFF sponsored SB 467 recently passed the Senate 33-1 and is now being considered in the Assembly.

It's significant as proof that privacy reform is not only needed, but also politically-feasible with broad bipartisan support. And hopefully that will impact federal ECPA reform efforts by getting people on both of sides of the political aisle to work together to make meaningful electronic privacy reform a reality. The more states that pass similar legislation, the more pressure it will put on Congress to keep up with the changing legal landscape.

In March of this year Acting Assistant Attorney General Elana Tyrangiel, speaking on behalf of the U.S. Department of Justice (DOJ), finally agreed that the distinction between old and new messages or opened and unopened messages was silly.  After years of exploiting the loophole, even the DOJ appears to be behind legislative change.  

Texas flag
Texas has put pressure on the feds to update email privacy law. [Image Source: AP]

Now the pressure is on Congress to make it happen.  Until then Texas may have new protections of its own without federal rules, in the southern state where folks do things their own way.

Sources: Texas Congress, ArsTechnica

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