It’s unusual for the House of Representatives to unanimous support a piece of legislation. But late last month the House voted 419-0 to pass the Email Privacy Act. The legislation languished in the House for two years despite garnering 314 co-sponsors — than any other measure in this Congress.
Supporters of the Email Privacy Act say it is needed to update the 1986 Electronic Communications Privacy Act. That statute was written before the rise of the Internet and widespread use of email:
Under the Email Privacy Act, which updates the decades-old 1986 Electronic Communications Privacy Act (ECPA), authorities would have to get a warrant to access emails or other digital communications more than 180 days old. At present, agencies such as the U.S. Justice Department and the Securities and Exchange Commission only need a subpoena to obtain such data from a service provider.
Seems like a no-brainer. Laws that protect the privacy of our mail were written before Americans had access to email. According to Erin Kelly of USA Today, “Local, state and federal police agencies currently have the authority under the 1986 Electronic Communications Privacy Act to peruse emails at will if the communication is at least six months old. Critics say that law, written before email was commonly used, violates Americans’ constitutional protections against unreasonable searches and seizures.”
The Email Privacy Act is supported by a broad coalition that includes Conservative organizations such as Americans for Tax Reform and Heritage Action for America as well as left-wing groups such as the American Civil Liberties Union. Who is against the Email Privacy Act?
Who opposes the Email Privacy Act? According to Politico, the Securities and Exchange Commission does:
The Securities and Exchange Commission is still fighting a House-passed bill to require law enforcement to get a warrant before obtaining messages from email providers. The SEC could find a more receptive audience in the Senate. . . . To pass the measure, supporters like Sens. Patrick Leahy and Mike Lee will probably have to seek unanimous consent. That means if just one senator agrees with the SEC, he or she could block the bill’s passage.
The SEC is looking for a carve out. The agency essentially wants to keep the loophole so it can access emails without a warrant during its investigations. Apart from asserting its considerable political clout in Washington though, the agency hasn’t made a cogent argument why email shouldn’t enjoy the same fourth amendment rights as snail mail.
The Email Privacy Act is onto the Senate. The Senate should follow the House’s lead on this commonsense measure to give our email the same protection as snail mail and pass it unanimously.