Senate Judiciary Committee to vote on email privacy bill

By Brendan Sasso - 11/15/12 12:11 PM ET

The Senate Judiciary Committee will hold a markup on Nov. 29 of legislation that would require police to obtain a warrant before reading people's emails, Facebook messages or other forms of electronic communication.

Committee Chairman Patrick Leahy (D-Vt.) added the warrant requirement to H.R. 2471, a House bill that would loosen video privacy regulations.

Leahy argues that the warrant requirement is necessary to ensure that federal privacy laws keep pace with advances in technology.

Under the Electronic Communications Privacy Act (ECPA) of 1986, police only need an administrative subpoena, issued without a judge's approval, to read emails that have been opened or that are more than 180 days old. Police simply swear an email is relevant to an investigation, and then obtain a subpoena to force an Internet company to turn it over.

When lawmakers passed the ECPA more than 25 years ago, they failed to anticipate that email providers would offer massive online storage. They assumed that if a person hadn't downloaded and deleted an email within six months, it could be considered abandoned and wouldn't require strict privacy protections.

Civil liberties groups say ECPA is woefully out of date in an era when deleting emails is no longer necessary.

But Sen. Chuck Grassley (Iowa), the panel's top Republican, has expressed skepticism about creating new barriers for police investigations.

The gap in privacy protections for electronic communication has gained greater attention in recent days after the FBI discovered former CIA Director David Petraeus was having an affair by reading his private emails. Petraeus has since resigned.

"While the details of this investigation that have leaked thus far provide us all a fascinating glimpse into the usually sensitive methods used by FBI agents, this should also serve as a warning, by demonstrating the extent to which the government can pierce the veil of communications anonymity without ever having to obtain a search warrant or other court order from a neutral judge," Chris Soghoian, a policy analyst for the American Civil Liberties Union, wrote in a blog post earlier this week.