Privacy and Security

House Judiciary Committee Unanimously Forwards the Email Privacy Act to the Full House

The Judiciary Committee of the United States House unanimously passed a substituted version of the Email Privacy Act.

“Americans… are one step closer to having private and secure digital communications,” according to the Act’s primary sponsor and ALEC Alumni, Rep. Kevin Yoder (R-KS).

The Act, which seeks to update the nearly three decade old Electronic Communications Privacy Act, had been stalled in the Committee until Chairman Goodlatte (R-VA) scheduled it for a markup.  In a statement, Chairman Goodlatte stated,

The Email Privacy Act modernizes ECPA to ensure it keeps pace with ever-changing technologies. These updates to the law protect Americans’ constitutional rights and provide law enforcement with the tools they need to protect public safety.

The House Judiciary listed several key provisions of the Act, noting specifically that it,

creates a uniform warrant standard for law enforcement to obtain the content of communications in criminal investigations. ECPA warrants will continue to be executed with the provider since, as with any other third-party custodian, the information is stored with them. It allows the provider to notify its customers of receipt of a warrant, court order, or subpoena, unless the provider is court ordered to delay such notification.

The bill expands these warrant requirements to include “remote computing services,” or “cloud services,” and non-commercial publicly disclosed content. The current version of the ECPA does not make a distinction between material published on a website and text messages. The Email Privacy Act makes that distinction, treating group text messages differently than an advertisement on a website, and requires warrants for the group text messages.

The Committee kept language in the Act that will require civil agencies, such as the Securities and Exchange Commission, to serve warrants for electronic data rather than subpoenas. According to a letter signed by a number of civil society organizations, including The Jeffersonian Project,

We are particularly pleased that the Manager’s Substitute does not carve out civil agencies from the warrant requirement, which would have expanded government surveillance power and undermined the very purpose of the bill.

The Act would also end the arbitrary “180-day Rule.” The “180-day Rule” provides that law enforcement agencies do not need warrants for electronic correspondences that are older than 180 days.

The American Legislative Exchange Council lauds Chairman Goodlatte, Representative Yoder and all members of the Judiciary Committee in working together to pass this bipartisan, and overdue, update to the Electronic Communications Privacy Act. In so doing, they have worked to secure American’s civil liberties, and bring ECPA into the 21st Century.

In Depth: Privacy and Security

A market environment is essential for future success of the Internet. A consumer and private-sector-driven approach to privacy via self-regulation avoids undue regulatory burden that would threaten a thriving electronic marketplace. The Internet has flourished due in large part to the unregulated environment in which it has developed and grown.

+ Privacy and Security In Depth