Email Privacy Tops Tech Agenda at Judiciary Committee

Should law-enforcement officials have easier access to your email just because it's stored in the cloud? It does now and Patrick Leahy says he intends to resume efforts to update 1986 electronic privacy law to provide greater legal protections for emails and other digital files in the cloud.

By Kenneth Corbin
Wed, January 16, 2013

CIO — When the Senate convenes next week for the first session of the 113th session Congress, the head of the Judiciary Committee plans to renew the push to strengthen email privacy protections.

In an address at the Georgetown University Law Center, committee chairman Patrick Leahy (D-Vt.) announced that a reform of the 1986 Electronic Communications Privacy Act (ECPA) will be his top technology priority for the panel in the coming year.

Nobody questions the fact that if a police agency wants to go into your home, open your files, papers and read through them, they're going to have to have a search warrant. I question the willingness to have a different view when they can do it from a hundred miles away with a keystroke"

--Patrick Leahy, Senate Judiciary Committee Chairman

"I'll keep pushing to update our privacy laws to address emerging technology and the Internet," Leahy said.

You Got a Warrant?

Advocates of reforming ECPA--and there are many in the technology sector--argue that the law does not provide adequate protections for Internet users in the 21st century, and that interpretations of the statute have led to nonsensical distinctions between communications transmitted and stored in the cloud and those housed locally on a computer, among other concerns.

For instance, under ECPA, law-enforcement officials have been able to access emails stored remotely with a cloud-service provider that are more than six months old on the authority of a subpoena, rather than a warrant issued by a judge.

[Related: Senate Committee Approves Privacy Protections for Cloud, Email]

In November 2012, the Judiciary Committee passed legislation that Leahy authored updating ECPA to require a warrant based on probable cause to access communications from Webmail providers and ending the 180-day distinction for government access to email and other digital files stored in the cloud.

Leahy said that at that late date in the session, with holidays and the debate over the fiscal cliff looming, he did not expect the ECPA reform legislation to move further, but instead that he wanted to signal that email privacy remains one of his chief legislative priorities.

"We knew it would not go on the floor but I did want to lay down the marker as a way of telling everybody it's coming back up again," he said.

[Related: U.S. Senator has Not Caved on E-privacy, Aide Says]

"Nobody questions the fact that if a police agency wants to go into your home, open your files, papers and read through them, they're going to have to have a search warrant. I question the willingness to have a different view when they can do it from a hundred miles away with a keystroke," he added.

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