Cramer: Email Privacy Act Ensures Fourth Amendment Protections Apply To New Technologies

Press Release

The first update in 30 years to email privacy laws was unanimously passed by the U.S. House of Representatives Wednesday. H.R. 699, the Email Privacy Act, revises the Electronic Communications Privacy Act (ECPA) that was first passed in 1986. It requires the government to get a probable cause warrant from a judge before obtaining private communications and documents stored online with companies such as Google, Facebook, and Dropbox.

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.

"H.R. 699 is a big win for user privacy," said Cramer, who was a co-sponsor of the bill. "The past three decades have brought significant technology advances, especially with the internet, email and cell phones. This bill ensures that Fourth Amendment protections are applied to the use of today's technologies. It recognizes that while technology has dramatically changed how we communicate, the Constitution remains the same."

Cramer said that current law allows the government to access email that is more than six months old without a warrant. "Technology has changed dramatically since 1986. There was no Google, Facebook, Twitter, or cloud computing. Social networking in the 1980s meant passing a note to a friend in class. Today, social networking means posting on friends' Facebook walls or liking their photos on Instagram. The way we communicate today requires Fourth Amendment protections."

Key provisions of H.R. 699 are:

Warrant requirement: The bill creates a uniform warrant standard for law enforcement to obtain the content of communications in criminal investigations. 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