Email privacy bill gets long-awaited hearing

An email privacy bill with more than 300 cosponsors will get a hearing in the lower chamber on Tuesday, but plans for a markup or vote on the legislation are still unclear. 

The House Judiciary Committee appears poised to cover much of the same ground as its Senate counterpart did during a hearing in September, when many of the same witnesses testified. 

{mosads}The Email Privacy Act — led by Reps. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) — has failed to move in the past two and a half years despite having support from a supermajority of the chamber. Supporters have opted against attempting to force a vote through a discharge petition. 

The legislation would close a loophole in the 1986 Electronic Communications Privacy Act (ECPA) that lets the government use a subpoena, rather than a warrant, to force companies such as Google and other service providers to hand over customers’ electronic communications if they are more than 180 days old.

The provision is a holdover from an era in which it would have been largely impractical for an email service provider to store emails for more than six months and cloud storage was not yet available.

It is universally accepted that the law has not kept up with current technology, and law enforcement and other agencies no longer use the ECPA loophole because of constitutional concerns. 

But federal agencies such as the Securities and Exchange Commission (SEC) have opposed the bill in its current form and have asked for carve outs. The SEC lacks authority to obtain criminal warrants, which would be useful to go around a target and obtain emails or other communications from a company such as Google. 

“It’s important that our laws keep pace with ever-evolving technologies so that we protect our constitutional rights in today’s digital age,” Judiciary Chairman Bob Goodlatte (R-Va.) said in a statement. “It’s also imperative that law enforcement has a workable law to conduct investigations so that it can protect our communities.”

Those testifying Tuesday include representatives from the SEC, U.S. attorneys and the FBI. Supporters of the legislation will also testify, including officials from Google and the Center for Democracy and Technology. 

In testimony back in September, the SEC and other agencies admitted they no longer use the subpoena authority under ECPA after a 2010 court ruling found it could violate the Fourth Amendment. 

They are asking for concessions that would create a new warrant-like court order to allow them to obtain email information during civil, rather than criminal, cases. Warrants can currently only be obtained with probable cause of a criminal violation. 

Under an SEC reform proposal, officials would obtain emails from a provider with only a subpoena. In exchange, they would give prior notice to the target of an investigation and allow the individual to challenge the subpoena. 

“Such a proceeding would offer even greater protection to subscribers than a criminal warrant, in which subscribers receive no opportunity to be heard before communications are provided,” the SEC’s Andrew Ceresney offered earlier this year. 

Google and others have called the SEC’s offer a distraction.