Updates To The Electronic Communications Privacy Act?

Internet law news alert! The House and Senate are finally getting around to updating the woefully outdated Electronic Communications Privacy Act. If Sen. Patrick Leahy’s new bill passes, it will be that much more difficult for law enforcement entities to get their hands on personal email correspondences.

Give Me The Quick Low Down On The Electronic Communications Privacy Act

Enacted in 1986, the Electronic Communications Privacy Act was passed into law to, well, do exactly what its name suggests – protect the privacy of electronic communications. But if you can think back to 1986, you’ll remember that email wasn’t exactly commonplace. In fact, back then, most politicians considered e-mail to be transitory and therefore not all that private. As such, the act classifies electronic communications as “business records” and the ECPA only requires officials to obtain an easily acquirable administrative subpoena to gain access to emails. Moreover, per the statute, emails older than 180 days are considered transient, and therefore semi-public.

What Will Change If The New Bill Is Passed?

If the new bill is passed, law enforcement agents will have a tougher time getting subpoenas to read emails. Instead of just having to acquire an administrative subpoena, which only requires proving “reasonable grounds,” the stricter standard of “probable case” will need to be established before a subpoena is granted to access the emails and electronic communications in question.

The new statute would also eliminate the 180-day stipulation.

The bill being introduced in the Senate will only affect email and the content of social media messaging and specific types of cloud-communications. It will not affect how law enforcement officials obtain IP address, email addresses and names. Why? Because prosecutors need IP addresses, email address and other identifying information when building a case. In other words, in order to meet the standards necessary to obtain a probable cause subpoena, investigators need to be able to use the relevant addresses and names to demonstrate that they are pursuing the correct person.

With the election in full-swing, it’s unlikely we’ll see any movement on this proposal until, at the earliest, March of 2013.

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