House Passes Bill Requiring Warrants For Searching Older Emails

Image courtesy of Adam Fagen

The House of Representatives has unanimously passed a second attempt at new legislation that would update existing federal laws to require that law enforcement obtain a warrant in order to remotely search files that are older than six months.

The Email Privacy Act was passed by a simple voice vote in the House, indicating no objection to the bill, originally introduced by Rep. Kevin Yoder (KS), with more than 100 co-sponsors from both parties supporting.

The bill seeks to amend the Stored Communications Act, which details how law enforcement can access remotely stored electronic communications.

Currently, a warrant is required to access messages created within 180 days. For files older than that, a mere administrative subpoena is needed.

The Email Privacy Act would update this standard so that a warrant, which requires a showing of probable cause, is needed to search these files regardless of age. Subpoenas can still be used to acquire general information about user and their account, but not the actual contents of their emails or stored files.

One issue that privacy advocates and tech companies had hoped to see in this legislation, but which failed to make the cut, is a requirement that the government notify most users that their files are being searched. After all, argue critics of the current laws, when the FBI raids an office building looking for files, it serves the warrant in person and everyone knows what’s going on. They contend that law enforcement shouldn’t be able to get around this aspect of a warrant just because the person can’t see their files being searched.

The Privacy Act does allow email providers to alert these affected users of the warrants and subpoenas, but it also provides several situations — flight risk for a suspect; risk of physical harm to an individual; potential for tampering; or “otherwise seriously jeopardizing an investigation or unduly delaying a trial — where the government can ask the court to bar providers from disclosing this information for up to 180 days. That gag order can then be renewed for periods of up to 180 days each.

These sorts of gag orders have angered some tech giants, including Microsoft, which is currently suing the federal government for the ability to disclose to its users that their files have been searched.

This is the second go-around for the Email Privacy Act. A previous, identical version of the bill was similarly passed by unanimous voice vote in the House, but died in the Senate after members of the Judiciary Committee tried to tack on amendments that would weaken the legislation by creating emergency loopholes to the warrant requirement.

The bill now goes once again to the Senate, where it remains to be seen whether it will meet the same fate as the previous version.

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