Interactive Counsel

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Interactive Counsel

Back to the Future: House Moves to Update Email Privacy Law

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Back to the Future: House Moves to Update Email Privacy Law

In a key win for digital privacy advocates, the House unanimously passed the Email Privacy Act yesterday in a 419-0 vote. Supporters, including top Silicon Valley names and privacy groups, now look to the Senate and then President Obama to bring the popular Act to fruition.
 
The bipartisan bill from Reps. Kevin Yoder (R-KS) and Jared Polis (D-CO) would require law enforcement to obtain a warrant to search through emails and other messages that are more than 180 days old. The current legislation governing digital communications, the Electronic Communications Privacy Act, allows police to search through digital archives with just a subpoena or court order. Why 180 days? The technical ability to store information online was much more limited when the current legislation was originally passed. When were these rules drafted? 1986.
 
Digital privacy advocates have attempted to build political interest to update the ECPA for several years, but this is the first time a draft bill has cleared either chamber of Congress. In the interim, some major tech companies and email providers have required government officials to present a warrant despite the outdated ECPA.
 
Though this bill comes during a major rift between law enforcement and the tech industry over privacy versus national security, a rift that continues to make waves as Congress considers encryption legislation, updating the ECPA to reflect the rise of the Internet may be a point of common ground. The Act notched over 300 bipartisan sponsors in the House, and several senators have endorsed similar legislation in the upper chamber. Even the FBI has adopted internal policies to use warrants to get email content instead of the subpoena power, according to testimony from FBI Director James Comey. However, it is not certain if Senate Judiciary Committee Chairman Charles Grassley (R-IO) will bring the bill to the next stage of consideration.
 
If passed, the Act would offer individual digital history the same protections as physical possessions, place of residence, and more from unlawful search and seizures.
 
Arent Fox’s Cybersecurity & Data Protection and Government Relations practices will continue to monitor developments in digital communications privacy. For further information, please contact Sarah L. Bruno or Alex Manning.

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