The WasteWatcher: The Staff Blog of Citizens Against Government Waste

House Passage of the Email Privacy Act

The WasteWatcher is the staff blog of Citizens Against Government Waste (CAGW) and the Council for Citizens Against Government Waste (CCAGW). For questions, contact blog@cagw.org.

On February 6, 2017, increased privacy for emails took a step forward with the House passage of H.R. 387, the Email Privacy Act.  This legislation provides a much-needed update to the Electronic Communications Privacy Act (ECPA), and extends the legal requirements of warrants to email communications stored by cloud services providers.

ECPA was enacted in 1986, long before electronic communications and internet cloud storage were widely adopted.  This has left a disparity in the manner in which the law has been applied to new technologies.  H.R. 387 ends ECPA’s arbitrary “180-day rule,” which permits email communications to be obtained without a warrant after 180 days.  The legislation also rejects a Department of Justice interpretation of ECPA that the act of opening an email removes it from warrant protection, thus ratifying the Sixth Circuit Court decision in U.S. v. Warshak, which held that email content is protected by the Fourth Amendment and access thereto cannot be obtained without a probable cause warrant.

By requiring a warrant for data stored electronically with third parties, H.R. 387 will help American companies continue to innovate and compete globally while protecting consumer information from warrantless searches.  The bill eliminates outdated discrepancies between the legal process for government access to data stored locally in one’s home or office and the process for the same data stored with third parties in the cloud.

The following statement can be attributed to Council for Citizens Against Government Waste President Tom Schatz:

House passage of H.R. 387 provides a vital update to the Electronic Communications Privacy Act.  Americans must have assurances that their private communications will have the same Fourth Amendment protections, whether it is a personal letter received in the mail or an email stored electronically on a provider’s server.  It is now time for the Senate to move forward and affirm the House’s action by passing these much-needed protections.

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