A Justice Department official told a House panel this week that Congress should modernize the Electronic Communications Privacy Act, a 1986 statute that creates rules governing access by law enforcement and other government agencies to user information stored with Internet communication service providers.

In particular, the Justice Department recognizes that it no longer makes sense to maintain rules in the statute that permit law enforcement to access communications content that is more than 180 days old with a subpoena, while requiring a warrant for more recent communications. 

“Acknowledging that the so-called ‘180-day rule’ and other distinctions in the SCA [a provision within ECPA] no longer make sense is an important first step,” Elana Tyrangiel, Acting Assistant Attorney General for the Office of Legal Policy, told the House Judiciary Committee’s Subcommittee on Crime, Terrorism, Homeland Security, and Investigations in prepared testimony on Tuesday.  “The harder question is how to update those outdated rules and the statute in light of new and changing technologies while maintaining protections for privacy and adequately providing for public safety and other law enforcement imperatives.”

On Tuesday, Sens. Patrick Leahy, D-Vt., and Mike Lee, R-Utah, introduced a bill that would require warrants for all email, regardless of how long it has been stored.  Tyrangiel said that this approach “has considerable merit, provided that Congress consider contingencies for certain, limited functions for which this may pose a problem.”  For instance, Tyrangiel noted that any changes to ECPA must allow civil regulators and litigators to obtain information for their investigations.  They often lack probable cause for a warrant, because they are not investigating criminal activities.

Tyrangiel’s comments are especially notable as members of Congress from both parties support an overhaul of ECPA.  At the hearing, Rep. Bob Goodlatte, the Virginia Republican who chairs the Judiciary subcommittee, stated that “ECPA reform must be undertaken so that despite the evolution of technology and its use in the world, the constitutional protections reinforced by ECPA will endure.”

If enacted, such a legislative reform would bring the statute into alignment with the 2010 decision of the Sixth Circuit in United States v. Warshak, which held that email content is protected by the Fourth Amendment and can be accessed in a criminal investigation only with a warrant.