House pushes to require warrants for all emails with appropriations amendment

House pushes to require warrants for all emails with appropriations amendment
© Greg Nash

The House Appropriations Committee Thursday night unanimously approved a legislative block to a law that allows law enforcement to seize emails, photographs and other cloud-hosted documents without a warrant. 

Under current law established in 1986 — before the invention of the world-wide web — law enforcement can demand any file stored on a third-party server for more than 180 days. 

Rep. Kevin YoderKevin Wayne YoderMcCarthy defeats Jordan for minority leader in 159-to-43 vote Feehery: With 2020 looming, Republicans must learn lessons from midterms Dems projected to retake House majority MORE (R-Kan.), who proposed the amendment, has proposed the same change as a standalone law in the last two Congresses. It died in committee during the 2014-2015 hearing and in the Senate in 2015-2016. 

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“Americans have a reasonable expectation of privacy in their emails and text messages and if the Senate and the [Securities and Exchange Commission] refuse to recognize that, Republicans and Democrats in the House will work together to force their hand by adding this language to our must-pass spending bill,” said Yoder. 

The Electronic Communications and Privacy Act (ECPA) of 1986 was passed into law in a world where use of cloud-type servers was rare and not used as a replacement for storing files locally. After 180 days, those would more or less be considered abandoned. 

In the current world, people keep old emails, social media messages and other files in the cloud for indefinite periods of time. 

Many internet companies currently will not turn over documents of any age without a warrant, regardless of the law. The Midwestern 6th U.S. Circuit Court of Appeals ruled in 2010 that law enforcement does need a warrant in these cases. 

Regulatory agencies that do not have the power to issue warrants argue that maintaining the ECPA is the only way for them to conduct investigations.  

In February, the SEC attempted to use an administrative subpoena rather than a warrant to obtain emails from Yahoo.