House of Representatives approves Email Privacy Act requiring warrants to search email and data

The Email Privacy Act (HR 387) has passed through the House of Representatives for the second time. It’s an attempt to update the now-ancient Electronic Communications Privacy Act (ECPA) from 1986 which gave cause for concern as it grants the government the ability to access emails and data older than 180 days which is stored on third-party servers without the need for a warrant.

The Email Privacy Act changes that. Privacy advocates are currently celebrating the fact that the updated Act has been approved by the House, but it now needs to pass through the Senate — where it already faltered last year. Google is among those to welcome the Act’s progress.

At the moment it is not clear whether or not the Email Privacy Act will make its way through the Senate unobstructed, but with widespread support for the changes it introduced, hopes are high. ACLU’s Neema Singh Guliani said that last year the bill “was derailed by Senate efforts to water down its provisions and attach amendments that would have weakened Americans’ privacy,” and that the change was needed to ensure “that Americans’ Fourth Amendment rights are protected in the digital age”.

Google is happy to see that there is “resounding support for updating electronic privacy laws”, with Richard Salgado, the company’s director of law enforcement and information security, saying:

This Act will fix a constitutional flaw in ECPA, which currently purports to allow the government to compel a provider to disclose email contents in some cases without a warrant, in violation of the Fourth Amendment. The Email Privacy Act ensures that the content of our emails are protected in the same way that the Fourth Amendment protects the items we store in our homes.

This is consistent with the practice around the country already and what the Constitution requires; the Sixth Circuit Court of Appeals concluded in 2010 that ECPA is unconstitutional to the extent it permits the government to compel a service provider to disclose to the government a user’s electronic communications content without a warrant. Today’s vote demonstrates that this conviction is widely shared.

The update to the Act comes as Google was told to provide the FBI with access to emails stored on foreign servers, and the actions of the Senate will be very closely watched.