House unanimously passes email privacy bill

The House on Wednesday unanimously passed an email privacy bill that the technology industry and advocates pushed for years.

The Email Privacy Act had the most public backers of any bill in Congress, and it passed 419-0. Attention now turns to the Senate. 

{mosads}The bill closes off a loophole in the 1986 Electronic Communications Privacy Act to ensure that law enforcement gets a warrant before forcing technology companies to hand over customers’ emails or other electronic communications, no matter how old they are. 

Though the outdated provision is no longer used by most agencies, the law technically allows law enforcement to use a subpoena — rather than a warrant — to get emails if they are more than 180 days old. When the law was enacted, there were large technical limits to storing data online.

“We know the ways that Americans communicate today is in a way in which they expect that those transmissions are private, and they expect that the government will honor that and not search those emails and not capture them for other purposes,” said Rep. Kevin Yoder (R-Kan.), who was the lead sponsor of the bill along with Democratic Rep. Jared Polis (Colo.). 

Privacy advocates have pressed since at least 2010 to wipe the provision from the books. That year, an appeals court issued a ruling that cast doubt on the constitutionality of the law. The Justice Department and a handful of civil agencies no longer use the subpoena power, and large technology companies like Google say they wouldn’t comply regardless. 

Nonetheless, the provision has remained on the books. 

The bill’s outlook in the Senate is uncertain, but pressure will quickly turn to Judiciary Chairman Chuck Grassley (R-Iowa), who has not advanced a similar bill out of committee. 

In the past, he has been sensitive to law enforcement and civil agency concerns with the legislation. Ahead of the House vote, he said “there is a lot of interest in taking it up” but provided no timeline.

“We urge the Senate to take up and pass this bipartisan, common-sense legislation without delay,” said the sponsors of the upper chamber’s bill, Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah). 

To make it to the House floor, the bill went through a series of small changes in committee, which privacy advocates were not happy about. However, they ended up endorsing the compromise in order to close off the 180-day loophole in the 30-year-old law. 

“In 1896, mail was sent through the U.S. Postal Service, a search engine was called a library, tweets were the sounds made by birds in the trees and clouds were found only in the sky. In 1986, computer storage was finite and expensive,” House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said. 

The bill was stalled for years as civil enforcement agencies like the Securities and Exchange Commission asked for carve-outs. The agency wanted Congress to create a special court order for civil agencies, which lack access to criminal warrants in purely civil cases. 

The bill would not change law enforcement’s ability to subpoena individual targets of an investigation for emails or other electronic communications. However, it would prevent them from using a similar subpoena to go around the target, and obtain the emails from a provider like Google or Microsoft. 

A provision was removed in committee that would have required the government to inform the target of an ECPA warrant, even if the warrant is served to the technology company.