Proposal to require police warrant for email snooping advances in Senate

The Senate Judiciary Committee on Thursday unanimously adopted an amendment 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.) authored the amendment, which was added to a House bill, H.R. 2471, that loosens video privacy regulations.

Although the committee approved adding the warrant requirement to the video bill, the senators did not vote on whether to send the legislation to the floor.

The Judiciary Committee is expected to vote on H.R. 2471 at its next business meeting, which likely won't occur until after the election.

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

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Civil liberties groups say ECPA is woefully out of date in an era when deleting emails is no longer necessary.  

Although committee Republicans did not object to Leahy's bid to move forward with the privacy provisions, they are expected to push for changes to the legislation.

When Leahy first announced that he would offer the amendment, Sen. Chuck Grassley (Iowa), the panel's top Republican, expressed skepticism about creating new barriers for police investigations.

"I have heard concerns about this amendment from state and local law enforcement officials. These officials are concerned with the impact this amendment may have on law enforcement operations," Grassley said last week. "Specifically, I have heard concerns about how this could impact cases where time is of the essence, namely kidnapping and child abduction cases." 

Grassley said he asked for input from the Justice Department, and officials told him the measure could "adversely affect the department’s activities."

The Obama administration has not taken a position on the measure.

H.R. 2471, the underlying bill, would update the Video Privacy Protection Act to allow users of Facebook and other social media sites to opt in to automatically share which online videos they have watched.

The change in the video law is Netflix's top lobbying priority in Washington.