Senate Considering Bill that Increases Email Privacy

Sunday, March 24, 2013, by Neil M. Barnes

Traditionally, the US government has taken a serious interest in protecting the correspondences of its citizens. Opening mail addressed to another before the other person has had a chance to receive the mail carries heavy penalties.

Even the government does not have limitless access to mail. Typically, the government needs a warrant to search through a citizen’s belongings, including mail.

The government is not, however, currently required to obtain a warrant to search old emails and messages stored online. Senator Patrick Leahy, a Vermont Democrat, introduced legislation on March 19 seeking to change the access the US government has to its citizens’ emails. Under the new bill, the government is required to obtain a search warrant to read emails stored with third-party providers, such as Gmail, Hotmail, and Outlook.

Currently, the government can access technical information about emails with a subpoena under the Electronic Communications Privacy Act, which was passed in 1986, before the widespread use of the Internet. Subpoenas also can allow the government to read emails more than 180 days old and sometimes even more recent messages, as long as they have been opened by the user. The “180-day rule” states that users have abandoned online communications on third party servers after 180 days, and thus have a reduced expectation of privacy in those communications. Therefore, a subpoena, which only requires the government to show that there is a reasonable possibility that the information sought will provide information generally relevant to the investigation, is sufficient for the government to access those communications. On the other hand, a warrant requires a showing of probable cause that the sought after information is related to a crime.

Leahy and other proponents of the bill believe that the government should have to show probable cause to access emails stored on third party servers. However, they are by no means the first high profile figures to advocate this view. Technology companies such as Google have recently objected to government subpoenas for emails on privacy grounds. Google and other privacy advocates believe that privately communicated digital messages should be treated the same as privately communicated physical messages.

Under the new bill, the age of the emails is irrelevant. The government is required to obtain a search warrant to search emails of any age. Furthermore, under the new bill, the government is required to notify a user if they are accessing that user’s emails.

The bill is already seeing support from the Justice Department through Elana Tyrangiel, the acting assistant attorney general at the Justice Department. Speaking to a House judiciary panel on Tuesday, she emphasized that there is no reason to treat more recent email differently than email more than 180 days old. Law enforcement authorities appear to be less concerned with the change of the standard of proof to search emails and more concerned that the bill mention how quickly third parties should comply with proper legal requests for users’ data. Richard Littlehale, a member of the Tennessee Bureau of Investigations, emphasized that the most important thing is a prompt response from third parties. “Whatever the level of standard of proof, the thing that matters to us most … is prompt response,” Littlehale said.