We are in the midst of a technological revolution producing relentless and far-reaching change. A time-traveler from a few decades would have much to marvel at.
Indeed, as the chief justice of the U.S. Supreme Court has noted, a visitor from Mars could easily infer that smartphones are a fixed part of human anatomy. But which is more astonishing: inventions like the iPhone or the fact that the main federal law regulating email privacy dates from 30 years ago?
In this post, we will discuss the debate surrounding a proposed bill in Congress to amend that law to require a law enforcement agency to get a search warrant before seeking to obtain email from a third-party provider. We will do this in Q & A form.
Does the main federal law on email privacy really date back to 1986? Few people outside of universities even had email back then.
Yes. As we explained in our October 15 post last year, the U.S. lacks national standards regarding law enforcement access to digital data.
For email, the primary federal law is still the Electronic Communications Privacy Act (ECPA). It was passed in 1986, during President Reagan's second term, several years before AOL started sending out floppy disks through the mail encouraging people to get online.
Are there any state-level protections for email privacy?
Yes, but only three states have digital privacy protections that go beyond federal law. New York is not one of them.
What is being proposed now regarding the 1986 federal law (ECPA)?
The ECPA contains certain restrictions on access to stored email. But it is really not too difficult for law enforcement agencies to get email data directly from third-party providers, merely by asserting that it is for an investigation.
A few weeks ago, the U.S. House of Representatives passed a bill called H.R. 699. HR 699 would provide greater protections by requiring law enforcement to get a warrant before trying to get the content of someone's electronic communications from a third-party service provider.
What is the status of HR 699?
It passed the House, which sent it to the Senate. The Senate has not yet acted on it.
What are some of the concerns?
Numerous government officials are concerned that HR 699 would make it too difficult for law enforcement agencies to conduct effective investigations.
The chair of the Securities and Exchange Commission (SEC), Mary Jo White, has pointed out that there is a big difference between a criminal search warrant and an administrative subpoena. This is because an administrative subpoena is issued under an executive agency's civil enforcement authority, not its criminal enforcement authority.
Allowing for a criminal search warrant to be used instead of an administrative subpoena when the issue at hand is civil (not criminal) fraud is not really sufficient, White contended in a New York Times op/ed.
Local prosecutors are also concerned that much-needed updates to ECPA don't impose too many restrictions on law enforcement access to electronic evidence. A lot depends, of course, on what amendments the Senate might make.
What should you do if you face a criminal investigation or charges?
There is no substitute for getting a skilled criminal defense lawyer on your side.