House Passes Email Privacy Act

February 13, 2017

The House of Representatives overwhelmingly passed the Email Privacy Act (H.R. 387) by a voice vote with no objections. This bill passed the House of Representatives unanimously last year. It will close a loophole in the 30-year-old Electronic Communications Privacy Act of 1986 which now allows law enforcement to obtain the content of internet users’ communications without a warrant after 180 days. The Email Privacy Act establishes a warrant-for-content requirement no matter how old the communication is.

This bill would bring the law into line with the requirements of the Fourth Amendment and the modern privacy expectations of people who increasingly store private communications, documents and pictures in the Internet ‘cloud’ and expect that their information will be safe against unreasonable searches and seizures. New America’s Open Technology Institute supports the Email Privacy Act.

Ross Schulman, Senior Counsel at Open Technology Institute said, “The Open Technology Institute applauds the House of Representatives passage of the Email Privacy Act for the second year in a row. The Email Privacy Act is not only essential legislation to protect Americans’ privacy, it’s also the most widely supported bill in Congress. The Senate should follow suit and pass it quickly, and without any poison pill amendments, like the surveillance expansions that were considered last Congress.”

Christian Dawson, Co-Founder and Executive Director with Internet Infrastructure Coalition added, "The next step for ECPA reform is again in the Senate. To date, we have had many members spending countless hours advocating in person and by mail on ECPA. We will need to lean on each of you to do the same in our effort to get this ECPA reform on the President’s desk.

It is hard to overstate the importance of ECPA reform to Internet Infrastructure Providers, but we’d like to take a moment to explain why it is particularly important to us.

While the deficiencies in ECPA in general are well documented, two issues are troublesome for our members in particular:

ECPA significantly increases costs for Internet infrastructure providers by creating a complex set of rules for access to data. These rules do not reflect the current use of technology. This makes developing compliance plans difficult and increases the possibility that sensitive information will be disclosed.
Warrantless access to data by U.S. law enforcement entities discourages the adoption of cloud technology.

As a result of our role in the middle of most Internet transactions, Internet infrastructure providers receive a significant number of requests from law enforcement for information about their customers. Most have compliance plans designed to ensure that they comply with the laws governing their businesses, their customer expectations, and their privacy policies. A law that requires us to distinguishes between email that has been on a server for more than 180 days, or is in the trash, is generally unworkable.

ECPA is also inconsistent with and threatens the enterprising nature of, the Internet and the cloud computing industry. According to Gartner, Cloud services are a $200+ billion industry. Without updated privacy laws to provide online customers with the same legal protections they could get off-line, we risk losing thousands of jobs — and our ability to compete in the global marketplace. ECPA reform sends a strong message to the marketplace that Congress cares and understands that law enforcement access to data is one of the most important marketplace issues that our members face."

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