Right now, police can gain access to nearly all of your past emails, simply by telling your online email provider that they need them for an investigation. No warrant required. But that may soon change thanks to a new bill introduced Thursday by Senate Judiciary Committee Chairman Patrick Leahy (D-VT). The bill would require law enforcement to obtain a probable-cause warrant before accessing all non-public Internet communications, including email, chat logs, and files stored in the cloud.
Leahy’s bill — which he first tried to pass last year, and failed — seeks to amend the outdated Electronic Communications Privacy Act of 1986 (ECPA), which currently allows law enforcement to access a suspect’s emails, chat logs, and files stored with cloud storage service without a warrant if the records have been stored for 180 days or more. As the law is currently written, records older than 180 days are considered “abandoned” by the user — a concept that no longer applies in an era when the bulk of our communications happen online, and are inevitably stored indefinitely, without consideration by the user.
Other information, including name and IP address, may still be sought by police without a warrant.
If approved by the Senate Judiciary Committee in a markup scheduled for next Thursday, the proposed amendment will be attached to House Bill H.R. 2471, which passed the House late last year. H.R. 2471 seeks to update the Video Privacy Protection Act of 1988 (VPPA), a bill that was also authored by Leahy. As written, VPPA prohibits the disclosure of video rental history — something the Federal government considered important after Washington City Paper published the video rental history of Supreme Court nominee Robert Bork (who failed to receive the position).
Like ECPA, VPPA was passed at a time before online services were widely used. Consequently, VPPA prohibits video streaming companies like Netflix from making public the movies and shows we watch through the service. This is the reason companies like Spotify can automatically post which song you just listed to on Facebook, but Netflix cannot do the same for video content. Because of this, H.R. 2471 has received strong backing by Netflix.
“When Congress first enacted these laws almost three decades ago, email was still a novelty and most Americans viewed movies at home on VHS tapes rented at their local video store,” Leahy said in a statement released earlier this month. “The explosion of cloud computing, social networking sites, video streaming and other new technologies in the years since require that Congress take action to bring our privacy laws into the digital age.”
If Leahy’s amendment to ECPA passes committee next week, it will move on to the full Senate, along with the rest of H.R. 2471. Were the Senate to approve the bill, it would then move back to the House for approval, and then on to President Obama’s desk for full passage.