HR 2471: Proposed E-Mail Privacy Bill

email privacyIn a few months, it may be a little more difficult for law enforcement agents to get a hold of your e-mail and social media messages. Last week, the Senate Judiciary Committee approved a bill (HR 2471), sponsored by Sen. Patrick Leahy, which seeks to update the 1986 Electronics Communications Privacy Act. The bill will require officials to obtain a warrant if they want to read private e-mails or electronic messages.

What, exactly, is the Senate Judiciary Committee, you ask?One of the oldest government committees still in existence, the SJC was created in 1816. In addition to conducting Supreme Court nominee hearings, the judicial board also deals with federal criminal law, human rights, immigration, intellectual property, antitrust and online privacy.

How It Works Now

Issues surrounding e-privacy are largely governed by the Electronics Communications Privacy Act, which was passed in 1986. The statutes codified within the ECPA speak to a time when the World Wide Web was in its infancy and e-mail was considered a transitory form of communication. As such, the statute stipulated that law enforcement officials only needed to obtain a warrant to read emails that are less than six-months-old.

Currently, law enforcement agents are able to obtain old e-mails with less information than they would need to get a “probable cause” warrant. Additionally, four states already have laws rendering warrantless access to email unconstitutional; plus, other statutes exist which compel third parties to hand over information to officials when lives are at stake or children are at risk.

Lastly, government investigators and police officers can get “to” and “from” data from e-mails – via judicial order – in order to build a probable cause case to obtain a warrant. And believe it or not, officials can get e-mails turned over, with less than a warrant, if the message falls into the vaguely defined “electronic storage.”

The Murky Legal History Of “Electronic Storage”Since the Internet’s inception, lawmakers have been trying to lasso technology into legalese – but they haven’t had much luck wrangling a consensus on what constitutes “electronic storage.”The 9th Circuit Court of Appeals defined electronic storage as simply “anything kept in an inbox.” The Supreme Court of South Carolina, however, ruled that “read emails are not in electronic storage and can be read without a warrant.” The Department of Justice thinks that deleted, read and draft messages aren’t in storage. To top it off, in 2010, the 6th Circuit Court of Appeals ruled that warrantless e-mail reading violates the Fourth Amendment.

Who Is In Support Of The New E-mail Privacy Bill? Who Is Against It?

Support for the bill is divided, but oddly enough, not across party lines. While the sponsor of the bill is a Democrat, several co-sponsors are Republicans. Moreover, the American Civil Liberties Union, Grover Norquist’s Americans for Tax Reform, Google, Microsoft and Twitter all support the bill. However, the senate minority leader, Sen. Charles Grassley, has expressed concern that there hasn’t been sufficient debate on the topic; additionally, associate deputy attorney general, James Baker, urged officials last year not to pass the bill, suggesting it would hamper law enforcement efforts.

What’s The Next Step?

So, what’s next for HR 2471. In all likelihood, we won’t see any movement until next year. The e-mail privacy law must first be cleared by the Senate, at which point it will move on to the house.

Many legislators are also eager to add language that exempts law enforcement officers from having to obtain a warrant in instances of rape and kidnapping.

Experts estimate that cloud-computing will be a $240 billion a year industry by 2020. In other words, U.S. firms must gain the confidence of users, or they could lose out on all that juicy profit. Since the European Union has already passed strict online privacy laws, expect U.S. officials to follow suit, if not only to secure the nation’s competitive cloud-computing edge over the coming years.

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