Decades before cloud computing was invented, the government decided it should have the power, after 180 days, to read anyone’s emails, and that it shouldn’t need a warrant to do this. While no lawmaker today would seriously suggest passing such an incredible invasive law, Congress has found itself incapable of closing this privacy loophole for years. But now it has its chance. Again.
When Congress passed the Electronic Communications Privacy Act (ECPA) in 1986, commercial email services like Gmail didn’t exist. Fewer than 15% of U.S. households even owned a computer. Most unread emails were routinely deleted within a few months’ time if for no other reason than a scarcity of storage space. Hardly if anyone outside the realm of science fiction had really considered the idea of corporations stockpiling—outside the constitutional embargo on unreasonable police searches—decades’ worth of private letters belonging to hundreds of millions of people.
At the urging of civil liberties experts, a slew of bills have been introduced in recent years to address this excessive police authority. Yet they’ve been crushed at every turn by a handful of high-ranking senators; some of them intent on opening Americans’ privacy up to equally intrusive measures, according to the same experts.
On Wednesday, a bipartisan group of House lawmakers reintroduced one such bill aimed at closing the 180-day loophole without arming the government with some new unchecked surveillance authority. The Email Privacy Act would force the government to demonstrate probable cause in court before reading someone’s old emails, helping to align current federal laws around the compelled disclosure of Americans’ communications held by third-party companies.
It would further align it with a 2010 Six Circuit appellate court decision, which found the content of emails are subject to Fourth Amendment protections. Despite messages being handled electronically by a third-party, users maintain a legitimate expectation of privacy when it comes to email, the court ruled.
“When laws protect a letter in a filing cabinet more than an email on a server, it’s clear our policies are woefully outdated,” said Rep. Suzan DelBene, Democrat of Washington. “The Email Privacy Act is a powerful step forward toward enhancing Americans’ civil liberties.”
DelBene is joined in reintroducing the bill by fellow Democrat Jerry Nalder, chairman of the House Judiciary Committee, and Republican Reps. Jim Sensenbrenner and Rodney Davis.
The House passed the Email Privacy Act in 2016 unanimously and again in 2017. But Republican supporters of broad national security exemptions, Sens. Lindsey Graham and John Cornyn chiefly, torpedoed any further consideration by the Senate.
In 2018, the House again voted to pass the Email Privacy Act, this time as an amendment to the government’s annual defense budget. But it was neutralized once again by the Senate.