Email Privacy Tops Tech Agenda at Judiciary Committee

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.

ECPA reform proposals have come under fire from critics who warn against provisions they say would hinder the ability of law enforcement authorities to conduct effective investigations.

[Related: Tech Firms, Privacy Groups Want New E-Privacy Law]

Leahy has acknowledged some of those concerns in his legislation, allowing that government authorities should be able to seek permission from a court to delay notifying a suspect about a warrant in a sensitive investigation for up to six months. But the bedrock principal of the reform effort–that access to electronic communications must be obtained through a warrant issued by a judge–remains controversial.

“It is going to be a fight, but I think people are realizing they don’t have to give up their ability to use the Internet and everything else while at the same time guarding their freedom,” Leahy said. “Those are broad-brush answers, I realize, but we are going to bring it back this year and it’s also one of the things that helped my decision to stay as chair of the Judiciary Committee.”

Leahy did not indicate when he plans to bring ECPA reform back to the committee’s agenda, though he said that comprehensive immigration reform will be among the first issues the panel considers, with hearings planned for next month.

The Obama administration has also signaled that it plans to push for immigration reform in the president’s second term, and any overhaul would likely include efforts to expand access to high-skilled, foreign-born workers, a long-standing priority of the technology industry writ large.

Judiciary Committee’s Crowded Agenda

Leahy identified a number of other issues on his crowded policy agenda for the Judiciary Committee, beginning with a hearing this month on gun violence, as well as benefits for first responders, oversight of the administration’s counter-terrorism programs and the reauthorization of the Violence Against Women Act.

Notably absent from the technology agenda that Leahy described was any mention of legislation to strengthen protection of copyrights and other intellectual property. In the last Congress, Leahy had backed the Protect IP Act (PIPA), a bill aimed at curbing online copyright infringement.

That measure, along with a slightly different House bill, the Stop Online Piracy Act (SOPA), became a lightning rod for controversy, with digital-rights advocates and prominent websites like Wikipedia and Reddit warning that the bills would lead to the restriction of lawful online content and eventually participating in a day of protest when they and scores of other sites went dark.

That groundswell of opposition effectively killed the bills, which were strongly backed by anti-piracy groups representing the movie and music industries, among others. Many lawmakers who had supported PIPA and SOPA have since backed away from the issue, and Leahy gave no indication that he intends to renew the fight for tougher online copyright laws in the coming session.

Kenneth Corbin is a Washington, D.C.-based writer who covers government and regulatory issues for CIO.com. Follow everything from CIO.com on Twitter @CIOonline, on Facebook, and on Google +.