After several failed attempts, the latest bill to update the Electronic Communications Privacy Act of 1986 (ECPA) passed the US House of Representatives on February 6. Under the current version of ECPA, law enforcement officials are not required to get a search warrant to read emails stored for more than 180 days. The updated bill, called the Email Privacy Act, would change this, so that a search warrant was required for reading the content of all emails, not just those older than six months. Technology has changed radically since 1986, and an updated law is necessary to reflect how society currently uses electronic communications. The Email Privacy Act still needs to pass through the Senate and then be signed by the President before it becomes law. The bill has support from both political parties, as well as companies like Google and non-profit advocacy groups like the American Civil Liberties Union.
The Fourth Amendment of the Constitution generally protects citizens against “unreasonable searches and seizures”, but depending on who you ask, emails, phone records, and internet search records can have different legal standards applied. In some cases, companies are not permitted to disclose that law enforcement has requested records, so a citizen may never know that the government has investigated their online communications.
The United States relies on a patchwork of state and federal laws to regulate privacy issues and consumer data protection. In contrast, the European Union has a more comprehensive approach to privacy protection, with stricter requirements for companies that gather and store personal data. In December, an umbrella agreement was approved between the EU and the US outlining specific protections for transferring data for law enforcement purposes.
The Email Privacy Act, if signed into law, would provide a big step forward towards providing a reasonable framework for law enforcement to access to electronic communications. In an era where smart phones and computers constantly transmit our personal data, it’s vital for laws to reflect and respect the importance of protecting the right of privacy for citizens. Just as a person’s house and physical space can’t be searched without a court’s approval in a warrant, so should a person’s digital space be protected. Time will tell if Congress agrees.