Email Privacy Act

The Email Privacy Act is a bill introduced in the United States Congress. The bipartisan proposed federal law was sponsored by Representative Kevin Yoder, a Republican from Kansas, and then-Representative Jared Polis, a Democrat of Colorado. The law is designed to update and reform existing online communications law, specifically the Electronic Communications Privacy Act (ECPA) of 1986.

In the 113th Congress (2013–15), the bill never made it out of subcommittee. In the 114th Congress (2015–17), the bill was unanimously passed by the House, but was derailed in the Senate following a series of weakening amendments offered by Republican Senator John Cornyn of Texas, the Senate Majority Whip. In the 115th Congress (2017–19) and 116th Congress (2019–21), the legislation passed the House, but failed to receive a vote in the Senate.

Background and bill provisions

The legislation would require authorities such as the U.S. Department of Justice and Securities and Exchange Commission to obtain a search warrant to access emails, data in cloud storage, and other digital communications more than 180 days old.Dustin Volz
Email privacy bill unanimously passes U.S. House
Reuters (April 27, 2016).House Unanimously Passes Email Privacy Act
''National Law Review'' (May 1, 2016).

Under current law—the Electronic Communications Privacy Act (ECPA) of 1986—authorities can obtain such data by issuing an administrative subpoena to an Internet service provider, without the need to obtain judicial approval. The Congressional Research Service reported in 2015 that: "In recent years, ECPA has faced increased criticism from both the tech and privacy communities that it has outlived its usefulness in the digital era and does not provide adequate privacy safeguards for individuals' electronic communications. In light of these concerns, various reform bills have been introduced in the past several Congresses..."

The Email Privacy Act would codify as federal law the decision of the United States Court of Appeals for the Sixth Circuit in ''United States v. Warshak'' (2010). In that case, the Sixth Circuit held that the Fourth Amendment to the United States Constitution requires that the government obtain a warrant before accessing emails stored online (e.g., in the cloud). The ''Warshak'' ruling currently applies only to the Sixth Circuit; the Email Privacy Act would extend its rule nationwide.

Supporters and opponents

The legislation "is widely supported by the tech industry and privacy advocates."

The Electronic Frontier Foundation has pushed for the legislation for over six years, hailing the House vote in favor of the legislation in 2016 as "a win for user privacy" and urging the Senate to approve it without weakening amendments.Sophia Cope
House Advances Email Privacy Act, Setting the Stage for Vital Privacy Reform
Electronic Frontier Foundation (April 27, 2016). The EFF noted, however, that the bill "isn't perfect" because it does not require the government to notify users when the government seeks their data from service providers, which the EFF believes is "a vital safeguard ensuring users can obtain legal counsel to fight for their rights."

A wide array of civil society

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