US Senator Leahy proposes bill requiring warrants to search e-mails

[JURIST] US Senator Patrick Leahy (D-VT) [official website] introduced a bill [text, PDF] Tuesday amending the 25-year-old Electronic Communications and Privacy Act (EPCA) [text], which he authored, to require the government to obtain a warrant before searching private e-mails and other data stored on an Internet cloud. The bill removes the 180-day rule that only requires a warrant to search e-mails that are unopened and stored for less than 180 days. In 1986, e-mail was only stored on servers briefly [Wired report] before being delivered to the the recipient's inbox, and e-mail older than six months was assumed to be abandoned. Leahy, who is the chairman of the Senate Judiciary Committee [official website], expressed the need to update the EPCA, passed in 1986, to bring it up to speed with the vast changes in Internet communication. He made a statement [press release] that, at the time, the EPCA was one of the nation's premier privacy laws:

But, today, this law is significantly outdated and out-paced by rapid changes in technology and the changing mission of our law enforcement agencies after September 11. Updating this law to reflect the realities of our time is essential to ensuring that our federal privacy laws keep pace with new technologies and the new threats to our security.
The American Civil Liberties Union [advocacy website] lauded the proposed legislation [press release] as a step forward but said more protections are needed such as stricter reporting requirements to inform the public how the surveillance powers are being used and a suppression remedy to exclude improperly obtained evidence from trial.

Last year, the Federal Bureau Investigation (FBI) [official website] came under fire after it was discovered it had collected more than 2,000 telephone records [JURIST report] between 2002 and 2006 by claiming the phone calls being made related to possible terrorism emergencies. The collection of telephone records on the basis of non-existent emergencies is a violation of the EPCA. In 2005, the US Court of Appeals for the First Circuit [official website] held that the EPCA should be broadly interpreted [JURIST report] to allow an e-mail provider alleged to have read correspondence in transit to customers to be tried on federal charges. The federal government filed suit [EPIC backgrounder] against Bradford Councilman, former vice president of online bookseller Interloc, which is now part of Alibris [corporate website], alleging the defendant provided customers with e-mail addresses and then directed employees to write code that would save and copy inbound communications from Amazon.com to those addresses before they were delivered.

 

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