Earlier this month the United States House of Representatives voted to mandate law enforcement to obtain a warrant prior to seeking old emails from technology companies, according to a report published by Reuters. The vote comes off as a step forward in protecting privacy for advocates concerned that the current administration may try to expand government surveillance powers. The measure was passed by a voice vote and push back is expected by the Senate. Last year, the bill failed in the Senate because of a handful of Republican legislators even after a unanimous vote by the House.

 

What This Means

For years, technology companies have lobbied Congress urging the passage of the Email Privacy Act (Email Act), a law that updates what is currently on the books, which has not changed for decades. The Email Act would force law enforcement to first get a warrant to access digital communications, including emails, that are at least 180 days old.

The issue of privacy of stored communications has been argued and decided in the courts. Specifically, in 2008 a Sixth District Appellate Court held in Warshak v. U.S.A. that the government’s seizing of older stored emails of a criminal suspect without a warrant violated the Fourth Amendment. That case has not been tested nationwide, however, and the Email Act’s passage would seal this result rather than depending on the Trump administration to not challenge it in court.

 

Current Law

As it stands, federal agencies such as the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) only need a subpoena to obtain this information. Unlike a search warrant, a subpoena is subject to less judicial oversight when seeking data from a service provider. This standard has been in place since the adoption of the Electronic Communications Privacy Act (ECPA) in 1986.

Supporters of the Email Act note that the ECPA does not provide Fourth Amendment protections to emails and electronic content. This is a hot button topic, especially after the FBI sought a court order mandating Apple help unlock an encrypted iPhone that was linked to one of the shooters in the San Bernardino attack. Some privacy experts are concerned with the current administration’s ability to expand government spying, especially due to implications about national databases on specific groups.

Last year, Microsoft filed a lawsuit in federal court against the DOJ over the ECPA, alleging its use by the government was unconstitutional. Microsoft argued that the law is often used to prohibit companies from alerting users when investigators are trying to access emails and other data.

 

Seek Legal Advice

It is important to know the law, particularly when it comes to privacy rights. Contact a knowledgeable attorney to explain your rights and obligations under the law so that you are not subject to unconstitutional searches of your electronic communications.

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