On January 9, 2017, Representatives Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) reintroduced the Email Privacy Act. According to Rep. Yoder’s spokesman, the text of the bill is similar to the version the House of Representatives unanimously approved last April, but which did not pass the Senate. As we previously reported, the proposed changes would prevent law enforcement from accessing emails and other electronic communications content stored with technology providers without obtaining a warrant.
The Electronic Communications Privacy Act (“ECPA”), passed in 1986, currently requires law enforcement agencies to use a warrant to obtain the content of a user’s electronic communications if those communications are 180 days old or less. But if the communications have been in “electronic storage” for more than 180 days, ECPA allows law enforcement agencies to use a subpoena, rather than a warrant, to obtain them. The Email Privacy Act would require a warrant for all content.
As discussed in our prior coverage here, this proposed amendment mirrors changes already imposed by courts and by individual states. In 2010, the Sixth Circuit ruled that ECPA was unconstitutional to the extent it allowed the Government to obtain emails without a warrant. That court held that the contents of email communications could be protected by the Fourth Amendment regardless of their age. Further, some states, including California and Texas, have passed laws requiring state law enforcement officials to obtain warrants for all email content.