Judiciary Committee approves "overdue" e-mail privacy bill

Lilly Chapa | Privacy | News | December 3, 2012

The Senate Judiciary Committee Friday unanimously approved a “very overdue” bill that would require law enforcement officials to get a warrant before accessing e-mail messages, updating a dated privacy law.

The proposed amendments are historic and will create a consistent method for handling government access to online communications, said Sophia Cope, director of government affairs at the Newspaper Association of America. But the measure likely won’t go to the Senate this year, forcing the process to start over again next year, she said.

“The Judiciary Committee’s vote was bipartisan, which set it up politically to be in a really good place next year,” Cope said. “We feel like this is a good step in trying to create a buffer between law enforcement and reporters and their newsgathering. It’s a really important step and is long overdue. Technology has completely outpaced the law, so it’s time to update it.”

According to the 1986 Electronic Communications Privacy Act, officials only need a subpoena to get e-mail messages from third-party service providers. To access e-mail messages less than 180 days old, government officials must obtain a warrant.

The proposed measure, which was authored by Sen. Patrick Leahy (D-Vt.), requires the government to obtain a probable-cause search warrant from a judge in order to gather e-mail messages from service providers, no matter how old they are.

“After decades of the erosion of Americans’ privacy rights on many fronts, we finally have a rare opportunity for progress on privacy protection,” Sen. Leahy said in a statement.

The Department of Justice and law enforcement officials oppose the proposed changes and claim that the increased protections will hinder criminal investigations.

“Their opposition isn’t surprising,” Cope said. “They’ve had a lot of leeway since the '80s to get access to content without a warrant, so they’re used to that. It’s going to be harder in terms of trying to meet higher legal standards with a judge’s approval.”

Even if the amendments are approved, the government can still obtain users’ non-content information and transactional data, such as account information, bank information and records of when and to whom e-mail messages are sent.

Cope said these are still risks reporters should keep in mind, but the proposed amendments are a good start to changing the outdated law.