Let’s close the email privacy loophole now

This week the House of Representatives took an historic step for Americans’ privacy rights.  By an overwhelming vote of 419-0, it passed bipartisan legislation to protect Americans’ email and other information in the cloud from warrantless searches.  Now that the House has passed the Email Privacy Act to finally update our laws for the digital age and without a single opposing vote, the Senate should do the same.

The Email Privacy Act would require the government to go before a judge and get a search warrant based on probable cause whenever it seeks to obtain our emails, photos, or texts held by technology companies.  This bipartisan bill updates a law, the Electronic Communications Protect Act (ECPA), that was written 30 years ago—before the widespread use of email.  The type of information that we send and store electronically today looks nothing like it did then.  ECPA’s arcane rules for protecting electronic information no longer make sense.  As a result, papers in your filing cabinets have more legal protections than emails in your inbox.

{mosads}This is an affront to American values and a violation of the Constitution’s Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  And it no longer reflects current practice.  After a federal appeals court found in 2010 that ECPA’s lack of a consistent warrant requirement was unconstitutional, the FBI and other law enforcement agencies have used warrants to obtain the contents of emails from service providers.

Still, the legal protection in the statute has not kept up.  Thanks to low-cost electronic data storage, virtually everything we do online now is recorded forever.  And to an extent unimaginable in 1986, our personal and professional lives today are conducted through – and therefore captured by – our electronic correspondence.

So it is long past time to modernize ECPA and ensure that our constitutional protections against warrantless search conform with the technological realities of the 21st century.

With the sweeping vote in the House of Representatives last month, now all eyes are on the Senate.  We both have worked together for years to ensure that ECPA is updated for the modern era, and the time is now for all Senators to join us.

Under the Email Privacy Act passed by the House, and the ECPA Amendments Act we introduced together in the Senate last year, law enforcement agencies would still be able to use subpoenas to acquire customer information, session-time records, and other non-content information that they may need to conduct an investigation.  But the private content of our emails and other personal electronic files would be protected by the warrant requirement.  Enacting this requirement into law should be a no-brainer. 

There’s nothing partisan about defending the right to be secure from warrantless searches and seizures.  This is an American issue.  All Americans deserve to have their Fourth Amendment rights protected both online and off, in both the real and virtual worlds.  That’s why the supporters of this legislation span from Google to the ACLU to the U.S. Chamber of Commerce.  Our bill has broad support from the technology industry, privacy advocates, civil libertarians, academics, and constitutional scholars from all parts of the ideological spectrum.

Last year we partnered with Chairman Goodlatte and Ranking Member Conyers of the House Judiciary Committee to protect Americans’ privacy in the USA FREEDOM Act.  Now we applaud them, as well as the lead House sponsors of the bill, Congressmen Yoder and Polis, for their leadership in moving the Email Privacy Act through the House. 

By passing this legislation, Congress can show the American people that our federal government is still working with their best interests in mind — and that we can still achieve bipartisan consensus on important issues, even in an election year.  The Senate should take up this legislation and pass it.

Patrick Leahy (R) is a Senator representing Vermont; Mike Lee (R) is a Senator representing Utah