An end to warrantless email searches?

An end to warrantless email searches?
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Legislation in the House that would end the warrantless searches of email records is gaining steam.

Privacy advocates had grown frustrated in recent months as Senate legislation that would curtail the email powers of law enforcement was thrown off track amid revelations about National Security Agency surveillance.


But they are increasingly optimistic that an update to the 1986 Electronic Communications Privacy Act (ECPA) — which allows law enforcement agencies to obtain things like emails without a warrant if they have been stored electronically for more than 180 days — could see action in the House.

The Email Privacy Act from Reps. Kevin YoderKevin Wayne YoderSharice Davids to vote for Trump impeachment articles: 'The facts are uncontested' Feehery: How Republicans can win back the suburbs K Street giants scoop up coveted ex-lawmakers MORE (R-Kans.), Tom GravesJohn (Tom) Thomas GravesThe Hill's Morning Report — Pelosi makes it official: Trump will be impeached Republican Tom Graves announces retirement from House Lawmakers skeptical of progress on spending deal as wall battle looms MORE (R-Ga.) and Jared Polis (D-Colo.) has 181 co-sponsors in the House, and the authors are “still pushing to get more,” according to a Yoder spokesman.

“There’s a lot of growing support for that bill,” said Mark Stanley of the Center for Democracy and Technology. “A lot of members of Congress see this as a common sense thing.”

More than 40 lawmakers have signed onto the bill since November, pushing the total close to the magic number of 218, which would represent a majority of the House.

“A lot of members of Congress see this as a common sense thing,” Stanley said.

Passage of legislation to limit warrantless email searches appeared to be a done deal last year until revelations about National Security Agency surveillance rocked the debate.

The focus on the activities of the NSA shifted Congress’s focus from law enforcement access to national security, shunting the email issue aside.

Email privacy reform “doesn’t have that direct connection to the NSA issue the way a bill like the USA Freedom Act does,” Stanley said, referring to legislation from Rep. Jim SensenbrennerFrank (Jim) James SensenbrennerLobbying world House Judiciary Committee calls on Bezos to testify as part of antitrust probe GOP, Democratic senators call for more assistance to local media in coronavirus stimulus MORE (R-Wis.) and Senate Judiciary Chairman Patrick LeahyPatrick Joseph LeahyDemocrats introduce bill to rein in Trump's power under Insurrection Act Murkowski, Mattis criticism ratchets up pressure on GOP over Trump House punts on FISA, votes to begin negotiations with Senate MORE (D-Vt.) that would scale back the government’s sweeping surveillance programs.

While the debate over NSA surveillance has largely increased awareness about digital privacy concerns, it has also taken attention away from the specifics of email privacy reform.

The intricacies of requiring warrants for stored emails are “not as widely understood as the threats from the NSA,” said Berin Szoka, president of TechFreedom.

“Everyone has been so focused on the NSA,” he said. “That’s the story.”

“What we’ve seen is just an amount of information that has overtaken Congressional offices and the American people,” added Mark Jaycox, legislative analyst for the Electronic Frontier Foundation.

“ECPA certainly has taken a back seat, like many other tech reforms,” he said, pointing to an attempt to update the Computer Fraud and Abuse Act, the statute that was used to prosecute the late Internet activist Aaron Swartz.

Privacy advocates think the administration has missed an opportunity to make progress on what they argue is a critical online privacy issue.

“There has obviously been a loss of trust with the public and the tech community” due to the NSA revelations, Stanley said, and passing email privacy reform would be “a great way to show the privacy and tech communities that they do support these privacy issues.”

Last year, proponents of reform were focused on a bill from Leahy and Sen. Mike LeeMichael (Mike) Shumway LeeHillicon Valley: Facebook employees speak up against content decisions | Trump's social media executive order on weak legal ground | Order divides conservatives The Hill's Morning Report - Presented by Facebook - Trump tweets as tensions escalate across US GOP deeply divided over Trump's social media crackdown MORE (R-Utah) that would require law enforcement officials to obtain a warrant before accessing the content of electronic communications.

The bill passed the Senate Judiciary Committee and had momentum, but civil agencies — led by the Securities Exchange Commission — protested the legislation, saying it would interfere with the way the agencies currently conduct investigations.

While Leahy continues to push his bill alongside surveillance reform, little progress has been made since his committee’s vote.

But with the NSA debate cooling down, Congress is beginning to look at other tech issues, according to Jaycox.

“I think they’re finally coming up for air,” he said, pointing to recent movement in both chambers on patent litigation reform, which has been a priority for the tech sector. “There’s finally some space to maneuver.”

If the House considers and passes an email privacy bill — which advocates predict could easily happen in the coming months — the Senate will be pressured to follow suit, privacy groups argue.

“That’ll show the Senate where the House is, and it will also show the force behind the bill,” Jaycox said.