Bill requiring warrants for email searches nears Senate vote

The chairman of the Senate Judiciary Committee is pushing to fast-track legislation that would require police to obtain a warrant before accessing emails and other private online messages.

Sen. Patrick Leahy's (D-Vt.) goal is for the Senate to unanimously approve his bill before the August recess, according to one of his committee aides. Any opposition could delay a vote until after Congress returns in the fall.

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He has secured unanimous support from his fellow Democrats and is in negotiations with Sen. Chuck Grassley (R-Iowa), the Judiciary Committee's ranking member, and other Republicans to address their concerns.

Leahy's aide claimed that even if a floor vote is delayed until after the recess, they are already "way past" the 60 votes they would need to overcome a filibuster and approve the bill, which is co-sponsored by Republican Sen. Mike Lee (Utah).

Gregory Nojeim, a senior counsel for the Center for Democracy and Technology and a supporter of stronger privacy protections, said that the news of the National Security Agency's surveillance programs has given Leahy's bill a new boost of momentum. 

"Revelations about NSA spying have made members of Congress very concerned about privacy," Nojeim said. "I think a lot of members are eager to vote for privacy legislation, and this provides that opportunity."

Leahy's bill would not affect the NSA programs, but it would curb the ability of local and federal law enforcement officials to access private online messages.

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

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.

Leahy and privacy advocates argue that ECPA is woefully out of date and that police should need a warrant, based on probable cause and approved by a judge, to read a person's emails.

The bill has the strong support of Internet companies like Google, Facebook, Yahoo and Microsoft, who argue that the current law erodes trust in online services.

"Users expect, as they should,that the documents they store online have the same Fourth Amendment protections as they do when the government wants to enter the home to seize documents stored in a desk drawer," Richard Salgado, a Google official, said at a House hearing earlier this year.

The Senate Judiciary Committee overwhelmingly approved Leahy's bill in April, and a bipartisan group of House lawmakers are working on companion legislation.

But Grassley and some other Republicans are concerned that the warrant requirement could hinder civil regulatory investigations. Warrants are only available for criminal investigations.

Mary Jo White, chairwoman of the Securities and Exchange Commission, sent a letter to Judiciary Committee senators earlier this year, explaining that few of her agency's cases involve criminal charges. She warned that applying a warrant requirement to the SEC would impede the agency's “ability to protect investors and to assist victims of securities fraud."

Grassley echoed White's concerns at the committee vote on Leahy's bill, and has sought changes to the legislation.

But Leahy and privacy advocates argue that regulators can still obtain relevant information by directly subpoenaing the individuals or companies who are under investigation. They say defendants and their lawyers should be making decisions about when to withhold irrelevant or privileged documents, not a third-party Internet provider who isn't involved in a case.