Senators to release bipartisan legislation on email privacy

Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) are expected to unveil legislation Thursday that will force the government to obtain warrants to look at Americans’ emails, according to three sources with knowledge of the bill.

The bill, titled the ECPA Modernization Act of 2017, aims to update the Email Communications Privacy Act of 1986. The bill will initially be released without any co-sponsors, the sources said.

{mosads}Currently, law enforcement can obtain Americans’ email correspondence with a written statement saying the emails are necessary to an investigation, a process that does not require judicial review. The new bill would change this and require law enforcement agencies to get warrants through a court to gain access to residents’ emails.

One source noted that the reforms would cover areas beyond email privacy such as protections on metadata and improvements to the current gag rules, which allow the government to keep email service providers from notifying users that their emails have been obtained.

The bill has been extremely popular in the House, passing with an overwhelming, bipartisan majority the past two times it was introduced.

This isn’t Leahy’s and Lee’s first attempt at updating the decades-old law. They tried to push the legislation forward in 2015, but their efforts were quickly halted when Sen. John Cornyn (R-Texas) made a move to include surveillance provisions favorable to law enforcement — effectively a poison pill that killed the legislation.

“My hope is we can negotiate something that serves the need of law enforcement as well as privacy interests of the public,” Cornyn told The Hill when the House’s version of an ECPA update passed in February. 

Leahy’s office did not offer comment on whether or not Cornyn’s considerations had been taken into account when drafting the Senate version of the ECPA Modernization Act of 2017.

“I’m always willing to talk to people, but I tend to take a pretty strict view on that,” Leahy said in March when asked if he would negotiate something more favorable to law enforcement interests with Cornyn.

Technology companies are expected to praise the legislation. The companies and their trade organizations have been strong advocates for past attempts at email privacy reform. Google alone has testified four times since 2010 in support of such reforms.

“The Senate now has a historic opportunity to shepherd this landmark reform toward enactment,” Google Director of Law Enforcement and Information Security Richard Salgado wrote in February. “We urge the Senate to advance this common sense measure, which will begin the process of updating ECPA for the Internet age.”