Senate Judiciary panel votes to require warrants for police email searches

The Senate Judiciary Committee approved legislation on Thursday that would require police to obtain a warrant before accessing emails, Facebook messages and other private online content.

The bill, which is sponsored by Judiciary Chairman Patrick Leahy (D-Vt.) and Sen. Mike Lee (R-Utah), was approved on a voice vote and now heads to the Senate floor.

Under the Electronic Communications Privacy Act (ECPA) of 1986, police only need a subpoena, issued without a judge's approval, to read emails that have been opened or that are more than 180 days old.

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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.

Privacy advocates argue the law is now woefully out of date and that police should need a warrant, based on probable cause, to access private online messages, regardless of how old they are.

Internet companies including Google, Microsoft, Yahoo and Facebook are also lobbying for an update to the privacy law.

An appeals court ruled in 2010 that police violated a man's constitutional rights by searching his emails without a warrant, but the Supreme Court has yet to settle the issue.

“All Americans — regardless of political party affiliation or ideology — care about their privacy rights,” Leahy said. “That is why Senator Lee and I are joined in this effort by a broad coalition of more than 100 privacy, civil liberties, civil rights and tech industry leaders from across the political spectrum in supporting the privacy updates contained in this bill.”

Lee emphasized that "reforming ECPA to protect legitimate privacy rights is not a partisan issue." 

Sen. Chuck Grassley (R-Iowa), the committee's ranking member, noted that the House is considering expanding the ECPA to require a warrant to access GPS data in addition to email content. He said that if the Senate decides to adopt GPS protections, the Judiciary Committee should first hold a hearing to study the issue more closely.

He also argued that the Senate should carefully consider the concerns of Securities and Exchange Commission Chairwoman Mary Jo White, who has warned that the legislation could impede civil investigations where agents do not have warrant authority.

The committee adopted an amendment from Grassley on Thursday that would require the Government Accountability Office to conduct a review of how police are using the law. Leahy also added a technical amendment to clarify that the bill does not affect wiretap or foreign surveillance laws. 

Chris Calabrese, a lobbyist for the American Civil Liberties Union, said he was "very pleased" with the vote.

"This is something that's starting to seem like a common sense change that reflects what every American believes their privacy rights already are," he said.

Greg Nojeim, an attorney for the Center for Democracy and Technology, said he expects the full Senate will approve the legislation in the near future.

The Internet Association, a lobbying group that represents Google, Facebook and others, applauded the committee for taking a "significant step in safeguarding the privacy of users' electronically stored content," and said it is committed to ensuring the bill is signed into law.

The Judiciary Committee approved similar legislation last year, but there was never a vote in the full Senate.

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