Email Privacy Act Pushed To Close Loophole

By John Celock

While a majority of the U.S. House of Representatives is backing a measure that would provide new privacies for emails and documents stored on the cloud, the bill continues to linger before a congressional committee.

U.S. Rep. Kevin Yoder (R-Kan.), a co-sponsor of the Email Privacy Act, said that 270 House members have backed the bipartisan bill, which has also been gaining steam in the U.S. Senate. The bill would update the Electronic Communications Privacy Act of 1986 to require the use of a search warrant in criminal cases and subpoena in civil cases to obtain emails or other electronic data stored after 180 days. The ECPA allows for free search of electronic data stored for over 180 days.

“Most Americans are shocked to find out that this almost 30 year old law, that was drafted before email was known, treats digital communication with less constitutional protections than paper communications,” Yoder told The Celock Report.

Yoder has co-sponsored the bill with Rep. Jared Polis (D-Col.) and indicated that the co-sponsorship list spans both parties. A Senate version of the bill has been sponsored by U.S. Sens. Pat Leahy (D-Vt.) and Mike Lee (R-Utah). In a case of politics makes strange bedfellows, the bill has been backed by the liberal American Civil Liberties Union and the conservative Heritage Foundation, along with the U.S. Chamber of Commerce.

“It is really a bill that bring multiple parties together,” Yoder said.

The bill is currently pending in the House Judiciary Committee. Yoder and his co-sponsors have been trying to tack the bill on to other legislation, including unsuccessful attempts in recent weeks to have the House Rules Committee allow for a floor vote to amend the bill on to either cyber security legislation or the reauthorization of the Patriot Act. While the Rules Committee has expressed support for the email privacy bill, and a majority of the panel has co-sponsored the legislation, the bill was ruled not to be germane to either of the other bills.

“I’m at a loss, I said it two weeks ago, it’s time for your bill to be here,” Rep. Doug Collins (R-Ga.), a Rules Committee member, said during a recent hearing.

Yoder said he and his partners are working to build an awareness of the bill and the current law. He said that most Americans do not realize the current states of the law and that older emails can be obtained without a search warrant. The bill was crafted when email use was contained to a limited few.

Yoder noted that when he first heard of the issue he had to read the law several times in order to confirm that the law allowed for this, calling the concept “unbelievable.”

The age of the law has been cited by Yoder and others involved in the issue, noting that the 1986 law was written in an era where instant photos were coming from a Polaroid and cell phones were as large as bricks.

“The bill we are introducing today protects Americans’ digital privacy – in their emails, and all the other files and photographs they store in the cloud. It builds consumer trust, and it provides law enforcement agencies with the tools they need to ensure public safety,” Leahy said in a February statement. “This is a bipartisan issue, and now is the time to act swiftly to bring our privacy protections into the digital age.”

Yoder noted that the “crowded agenda” of Congress has worked to slow the bill, but said that time would help build the momentum. Currently the bill is the third most co-sponsored bill in the House.

Yoder said that with the Judiciary Committee looking at a variety of larger issues that encompass the email privacy issue, he can see the email privacy bill being attached to a larger piece of legislation. A majority of the judiciary panel is co-sponsoring the email privacy bill. He said he believes President Barack Obama would be poised to sign such a bill, noting that the bill would likely pass with a majority that would overturn a presidential veto.

Right now, Yoder said building a momentum to pass the bill is part of the agenda.

“There is a moment here where there is a lot of focus on the balance between law enforcement and American’s expectations of privacy,” Yoder said. “This 1986 law is the most glaring example of government abuse and intrusion of digital privacy of Americans.”