#EmailPrivacyAct unanimously approved by House

Originally published on our Medium publication with full interactivity.

We’ve been living in a backward authoritarian 1986 for 30 years.

Did you know that in 1986 Congress passed the Email Communications Privacy Act that mandated law enforcement provide search warrants for emails not stored on your computer? It was an achievement of its time. Privacy experts said it was extending the Fourth Amendment into the information age.

And that’s sorta true. We stored our emails and online data (there wasn’t much in ’86) in a very different way than we do today. For starters, most emails were stored on private servers at the time. So, law enforcement would have needed a warrant to seize and search your private property without the ECPA.

We were clueless.

But we were digital fetuses at the time, wiggling around in the unknown but substantive fluid that is the net. Rarely did we store store emails on a server somewhere else, unlike today when we store them on Google or Hotmail servers. In 1986, people still thought of email as a replication of snail-mail, including the way we handled it. So, before the ECPA if your emails were anywhere other than within your private property, law enforcement could read them. NSA. By that I mean “no strings attached.”

Now, after 1986, law enforcement needed a warrant for your emails in other locations if those emails were less than 180 days old. After that, emails were considered disregarded, and no longer needed a warrant. Hooray! We had some kind of rights extended into the digital age! So with all the advancements in technology since 1986, we must have passed new laws amending the ECPA to keep up with the times, right?

 

Silly Rabbit…

Nope, not quite. Not at all, really. It was amended four times since 1986, and none of those were intended to support your civil liberties. One amendment provided gag orders to companies, meaning they could not disclose to their customers that the government was listening to their conversations. And another, the Patriot Act, led to the largest mass surveillance in human history, revealed by Edward Snowden. See the timeline for more information regarding these amendments.

A road to recovery.

But we do have good news. Today, the US House of Representatives unanimously (419–0) voted to pass the Email Privacy Act to reform the ECPA. The Email Privacy Act is a big improvement and most likely a direct result of the Snowden leaks.

 

Co-authored by Rep. Jared Polis, it extends your Fourth Amendment rights out into the digital cloud. So, law enforcement cannot access your emails, wherever they are, for however long they’ve been there, without a warrant. Hooray! Our rights have been extended into the digital age! …Right?

Slow your roll, kid. It still has to pass the Senate and it isn’t perfect. The language of the bill strictly states that law enforcement is not required to tell you that they’ve accessed your email after they get the warrant. So, you wouldn’t know if your rights are being abused. And the American Civil Liberties Union, while applauding reform, suggests that the Email Privacy Act needs what’s called a “suppression remedy.” An example, when law enforcement obtains non-electronic information without a warrant, or not within the bounds of the law, “suppression remedy” kicks in and that info cannot be used in court. There isn’t anything like this for emails or other electronic information — leaving another window for civil liberty abuses via the digital world.

“The House of Representatives’ passage of the Email Privacy Act (H.R. 699) is a decisive victory for Internet users, who deserve the highest privacy protections when governmental entities seek access to their data.” — Richard Salgado, Director, Law Enforcement and Information Security, Google

Rejoice, yo. Be jubilant. This bill is a win for privacy, but we have a long way to go. We won a battle, but don’t lose focus on the war.


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