House panel considers bill to protect email privacy

Erin Kelly | USA TODAY

WASHINGTON — The House Judiciary Committee began considering a bill Tuesday to update a nearly 30-year-old law that allows government agents to read Americans' emails without a search warrant if the messages are at least six months old.

"When current law affords more protections for a letter in a filing cabinet than an email on a server, it's clear our policies are outdated," said Rep. Suzan DelBene, D-Wash.

Under the 1986 Electronic Communications Privacy Act, federal, state and local police or regulatory agencies can order Internet service providers to turn over customers' emails that are 180 days old or older. The law was written before email use was common and before the creation of cloud technology to store electronic communication.

The bipartisan Email Privacy Act by Reps. Kevin Yoder, R-Kan., and Jared Polis, D-Colo., would require government agencies to get a search warrant to gain access to emails regardless of when the messages were written or whether or not they were opened. The bill has more than 300 co-sponsors. Similar legislation has been introduced by members of the Senate Judiciary Committee, also with bipartisan support, and privacy rights groups and the U.S. tech industry are pushing for the bills to get a vote soon.

"(The bill) reaffirms our commitment to protecting the privacy interests of the American people," said House Judiciary Chairman Bob Goodlatte, R-Va.

However, an official of the Securities and Exchange Commission said the bill would make it more difficult for agencies that investigate civil cases to go after lawbreakers.

The bill requires government agencies to obtain a criminal search warrant to compel an Internet service provider to turn over the content of emails. The SEC and other civil law enforcement agencies such as the IRS and the Environmental Protection Agency cannot obtain criminal warrants. Instead, they typically ask a court for a subpoena to get information. The standard for obtaining a subpoena is less stringent.

"(The bill) poses significant risks to the American public by impeding the ability of the SEC and other civil law enforcement agencies to investigate and uncover financial fraud and other unlawful conduct," said Andrew Ceresney, director of the SEC's enforcement division.

But lawmakers questioned how much the bill would really hamper the SEC since the agency has been prosecuting cases successfully in the wake of a 2010 federal court ruling that strengthened email privacy. That ruling by the Sixth Circuit Court of Appeals in Warshak vs. United States said the government violated constitutional protections against unreasonable search and seizure when it obtained emails stored by Internet service providers without a warrant.

The House bill would merely codify that decision, supporters of the legislation said.

"Civil agencies can already obtain digital content with a subpoena issued directly to the target of the investigation — such as a user who sent or received emails," said Chris Calabrese, vice president for policy at the Center for Democracy and Technology.

The head of law enforcement for Google, Inc. said the giant tech company supports the bill as a way to protect the privacy of its customers.

"Users expect, as they should, that documents they store online have the same Fourth Amendment protections as documents stored at home," said Richard Salgado, Google's director of law enforcement and information security.

In today's world, electronic communication often contains more personal information than any physical documents the government could seize, Calabrese said.

"You would find much more sensitive documents about me in the Cloud than you would in my home," he said.