House bill would require police to obtain search warrant to access emails

Rep. Zoe Lofgren (D-Calif.) introduced legislation on Wednesday that would require police to obtain a warrant before accessing private online communications or mobile location data.

Reps. Ted Poe (R-Texas) and Suzan DelBene (D-Wash.) have signed on as cosponsors of the legislation, the Online Communications and Geolocation Protection Act.

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"Fourth Amendment protections don’t stop at the Internet," Lofgren said in a statement. "Establishing a warrant standard for government access to cloud and geolocation provides Americans with the privacy protections they expect, and would enable service providers to foster greater trust with their users and international trading partners."

Under the Electronic Communications Privacy Act (ECPA) of 1986, police only need a subpoena, issued without a judge's approval, to read emails 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 electronic message within six months, it could be considered abandoned and wouldn't require strict privacy protections.


“As technology continues to evolve and improve, Congress must ensure that the Fourth Amendment rights of our citizens are protected. We live in a much different world than 1986," Poe said.

“When current law affords more protections for a letter in a filing cabinet than an email on a server, it’s clear our policies are outdated," DelBene said.

Updating the law to protect all electronic communications, regardless of how old they are, is a top priority for Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).

He tried to push legislation on the issue at the end of last year, but his bill never made it to the floor for a vote.

In a speech earlier this year, Leahy said his desire to update ECPA is one of the reasons he stayed on as Judiciary chairman, even though he could have taken over the powerful Appropriations Committee.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) has also indicated he is open to moving the legislation. In a statement last week, Goodlatte said updating ECPA "to reflect our current digital economy" is one of his priorities as chairman.

Despite ECPA's loose privacy standards, the major email providers say they already require a warrant before turning over private communications.

Google, Microsoft, Yahoo and Facebook told The Hill earlier this year that they believe the Fourth Amendment provides stronger privacy safeguards than ECPA.

All of the companies said their policies are based on United States v. Warshak, a 2010 federal appeals court ruling that found that police violated a man's constitutional rights by reading his emails without a warrant.

Traditionally, however, the courts have ruled that people have limited privacy rights over information they share with third-parties, like email providers or social networks.

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