With half of House, lawmakers push email privacy bill

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A bipartisan pair of lawmakers wants to require police to obtain a warrant to search people’s emails, and they’ve already got more than half the House on their side.

Reps. Kevin YoderKevin YoderHow Congress should proceed on the Kelsey Smith Act Overnight Cybersecurity: FBI won't tell Apple how it hacked iPhone House unanimously passes email privacy bill MORE (R-Kan.) and Jared Polis (D-Colo.) will introduce their Email Privacy Act on Wednesday with 223 co-sponsors. Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) are planning to introduce a companion bill in the Senate.

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But just because the lawmakers have more than enough early backers to get their bill approved doesn’t mean it’s guaranteed a vote. Last year, Yoder and Polis worked their way up to 272 co-sponsors on a previous version of the bill, but it never even got a markup in the House Judiciary Committee.

The new show of force should change that, lawmakers told The Hill.

“We’re starting at a much stronger place,” Polis said. “We’re able to pick up the momentum from last time, show there’s overwhelming support for this bill.”

Under current law, which was passed in 1986, law enforcement officials don’t need to obtain a warrant for emails, documents or items stored digitally in the cloud, as long as they are older than 180 days. Instead, they can nab the data with a subpoena, which does not come from a court and is often easier to obtain.

Critics on both sides of the aisle say that’s an unacceptable loophole and shows how the Electronic Communications Privacy Act has not kept up with the times. Activists from groups as varied as the Heritage Foundation and the American Civil Liberties Union have joined forces to push for an update.

The new bill would institute the same legal standard for police to obtain emails as currently exists for files in a desk drawer. 

“It simply represents an update of our outdated laws that were created before the widespread adoption of email,” Polis said. 

In the past, the legislation appeared to get held up by concerns from agencies, such as the Securities and Exchange Commission, which use subpoenas — not warrants — to conduct investigations. Raising the standard could make it harder for them to do their job, critics have feared.

House leaders are “very interested” in moving the bill forward, Yoder said, though the preference of Judiciary Committee Chairman Bob Goodlatte (R-Va.) remains to be seen.

The Obama administration has declined to weigh in on the issue.

The White House has yet to respond to a petition asking it to back an update to the law, even though it received the necessary 100,000 signatures in 2013 to merit an answer. 

In the past, the IRS has claimed that Americans do not have a “reasonable expectation of privacy” when it comes to their emails, so they are not covered under the constitutional right to privacy.

“The administration is on a island on this issue,” Yoder said. “I think that at some point they are going to run our of excuses as to why they are continuing to, without a warrant, without due process, without probably cause, read the private correspondence of Americans.”