Protecting Email Privacy

David Williams

January 30, 2017

This article originally appeared in the Washington Times on Jabuary 24, 2017

Last week, Reps. Kevin Yoder, Kansas Republican, and Jared Polis, Colorado Democrat, reintroduced the Email Privacy Act, a bill that will protect Americans’ privacy rights from bureaucratic overreach by updating the grossly outdated 1986 Electronic Communications Privacy Act (ECPA). Last April, the Email Privacy Act passed the House with a stunning 419-0 vote in the House of Representatives. Shortly afterward, the Senate version of the bill was compromised with controversial amendments, causing it to never make it to the Senate Judiciary Committee.

Now, however, all signs point to the clean version passing both houses of Congress this session.

The ECPA allows law enforcement to gain possession of any emails or messages that are more than 180 days old. This is a violation of our Fourth Amendment rights, making us less safe because it overwhelms our bureaucrats with excessive information.

If authorities instead focus on those who garner reasonable suspicion, they will have a better chance to catch the next Boston Bomber or Garland, Texas shooter, individuals who could have easily been caught by writing individualized warrants long before their attacks if we weren’t distracted with compiling the data of innocent Americans.

The Email Privacy Act will also stop the false leads with respect to electronic communications data by clarifying a 2010 federal court ruling, which said the Fourth Amendment requires law enforcement to obtain a warrant before accessing any stored communications.

ECPA reform has been delayed for far too long. In a world that’s so dependent on technology, it’s imperative that this Fourth Amendment loophole is closed once and for all.

Just last week, the National Law Review named ECPA reform the top privacy issue of 2017. That’s because it has “far-reaching implications in both the U.S. and abroad.” Perhaps the biggest consequence of this breach is the thawing of diplomatic relations with some of our greatest allies, including Ireland.

For two years, the United States has been attempting to seize some of Microsoft’s emails that are on a Dublin email server. Of course, this data is not even under U.S. jurisdiction, so the United States should be working with Ireland to gain approval instead of simply demanding the data. This would not be tolerated by another country doing the same to us.

Microsoft won an appeal of the case in July, but in October, the Department of Justice filed a petition to reopen the case. Clearly, existing email communications law is far too murky for even government officials to understand. It’s why completion of ECPA reform is so imperative.

Another alternative to ECPA reform is the bipartisan International Privacy Communications Act (ICPA), offered by Sens. Orrin Hatch, Utah Republican, Dean Heller, Nevada Republican, and Chris Coons, Delaware Democrat. The ICPA will balance the need for strengthened consumer privacy in electronic communications while also helping law enforcement to access truly needed data.

This summer, supporters of ICPA expressed their frustration with U.S. Attorney General Loretta E. Lynch’s re-opening of the Microsoft case in a letter sent directly to her. “When technology companies receive demands from U.S. law enforcement to turn over data on behalf of foreign customers, they are forced to make a difficult decision: either comply with the demand and satisfy U.S. law and risk violating the privacy laws of the host country, or challenge U.S. law enforcement’s request in order to comply with the laws of the host jurisdiction,” they said. ‘No one should be placed in this untenable situation.”

They’re right. No one should, and it’s why ECPA reform is so crucial.

Kendall Burman a Mayer Brown LLP counsel and former deputy general counsel for the U.S. Department of Commerce, said she believes ECPA reform will be “at least discussed on many levels.” That’s an encouraging sign. Hopefully, Congress will work with the new attorney general to create these much-needed changes to the law. The fate of our civil liberties and national security are dependent upon it.

With massive bipartisan support, there are no more excuses not to pass the Email Privacy Act or International Privacy Communications Act.