Email Privacy Act Protects Fourth Amendment Rights

Press Release

Congressman Kevin Cramer supported a bill passed unanimously by the House of Representatives today updating electronic user privacy laws and protecting the constitutional right against unreasonable searches and seizures.
H.R. 387, the Email Privacy Act, revises the Electronic Communications Privacy Act of 1986 (ECPA) to require the government to get a probable cause warrant from a judge before obtaining private communications and documents stored online with companies such as Google, Yahoo, and and Facebook, regardless of when the communication was crafted. It is the first update to electronic privacy laws in more than 30 years.
The bill codifies the Sixth Circuit Court ruling in U.S. v. Warshak, which held that Fourth Amendment protections against unreasonable searches and seizures require that the government must first obtain a warrant before accessing emails stored with cloud service providers. Under current law, the government can use a subpoena to search any electronic communication older than 180 days stored on a third-party server. Subpoenas, unlike warrants, do not require probable cause for issuance.
"H.R. 387 is a much needed improvement to our nation's electronic user privacy laws," said Cramer. "The past 30 years have brought significant technology advances, and this legislation ensures that Fourth Amendment protections are applied to the use of today's technologies without impeding law enforcement's efforts to protect the public. It recognizes that while technology has dramatically changed how we communicate, the Constitution remains the same."
Highlights of the bill include:
Warrant requirement: The bill creates a uniform warrant standard for law enforcement to obtain the content of communications in criminal investigations. The 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.

Remote Computing Services: The bill maintains current law that delineates which remote computing service providers -- or cloud providers -- are subject to the warrant requirement for content in a criminal investigation. ECPA has traditionally imposed heightened legal process and procedures to obtain information for which the customer has a reasonable expectation of privacy, namely emails, texts, photos, videos, and documents stored in the cloud.

Allows Law Enforcement to Access Public Information: ECPA currently makes no distinction between content disclosed to the public, like an advertisement on a website, versus content disclosed only to one or a handful of persons, like an email or text message. The result is that law enforcement would be required to obtain a warrant even for publicly-disclosed content. The bill clarifies that commercial public content can be obtained with process other than a warrant.

Maintains Congress's investigative power: The bill clarifies that nothing in the law limits Congress's subpoena authority to obtain information from third parties in furtherance of Congressional oversight.

Source