updated 05:55 pm EST, Thu November 29, 2012
Proposal will come under full debate and vote in 2013 sessions
An amendment proposed in 2011 to require warrants for law enforcement to eavesdrop on email communications, modifying the Electronic Communications Privacy Act (ECPA)from 1986 has been approved in a vote by the Senate Judiciary Committee today. The unamended law allows law enforcement to swear an administrative subpoena after email had been read by the recipient to retrieve it from a server, declaring only that the information was relevant to an investigation, with no requirement to name the investigation. The amendment to the law will go before the House and Senate for debate and vote in 2013.
"I think that people can and do have an expectation that their email will be private and should require a search warrant -- but unfortunately the Department of Justice does not agree," said Kurt Opsahl, a senior staff attorney with the Electronic Frontier Foundation.
As the law stands now, Fourth Amendment protection is only guaranteed if emails are downloaded to a local storage medium to the user, and deleted off the server. The amendment proposes information stored in the cloud, such as on Google Mail or files stored on Dropbox, would be protected in the same fashion.
Senator Charles Grassley (R-IA) said during the debate that he was concerned about objections from law enforcement, who obviously prefer the current standard as it is easier to meet. He also suggested that an emergency exemption in the law may not be broad enough in cases of child kidnapping. "It would be a travesty of justice if a child died and key information had been available in a child's account," Grassley said. He had attempted, and failed, to get an exemption to the warrant requirement in cases of child abduction, kidnapping, child pornography, or violent crimes against women.
The proposed changes to the ECPA don't have any bearing on the nebulous provision of the Foreign Intelligence Surveillance Act. There are reportedly provisions to prevent intrusion on privacy, but there has been no unclassified oversight on the strength of the provisions or if they have been violated by US Intelligence services.