The Washington Post

E-mail privacy hasn’t been updated in 28 years. This could be the bill to do it.


Thanks to a law that was written before "Robocop," law enforcement agencies are allowed to poke around inside your e-mail inbox without a warrant. Messages from six months ago are fair game. So are e-mails you've already opened. Other types of content we typically store in the cloud these days — photos, videos, documents, contacts and the like — also lack the Fourth Amendment protections that would ordinarily accompany their real-world copies.

A bill to fix that law is inching steadily forward. But it's been more than a year since the proposal, the Email Privacy Act, was introduced. If it takes much longer to wind its way through regular channels, one of its authors is vowing to invoke one of a number of shortcuts that would force his changes past the House.

On Thursday, Rep. Kevin Yoder (R-Kan.) said he intends to float a privacy amendment in upcoming House Appropriations legislation that would effectively do what the Email Privacy Act was written to do. The amendment would ban federal agencies from using any part of their budget for accessing e-mails using warrantless data requests (read: subpoenas, which demand a lower standard for suspicion).

"The fourth amendment applies to digital communications, same as with paper communications," said Yoder during a Google Hangout late Thursday night.

The Email Privacy Act would eliminate the old distinction between six-month old e-mails and new e-mails, replacing it with a blanket ban on the disclosure of all user data without a warrant. It's gathered nearly enough cosponsors — 214 out of a necessary 218 — to pass the House if it went straight to the floor. But the panel that's responsible for overseeing the bill may have other ideas.

The chairman of the House Judiciary Committee, Rep. Bob Goodlatte (R-Va.), is not a cosponsor. When asked whether he had concerns about Yoder's proposal, Goodlatte's office said in a statement that the chairman "is interested in pursuing more comprehensive reforms" and "is working closely" with privacy groups and law enforcement on the bill.

In an interview, Yoder said he'd had discussions with Goodlatte and that he'd received "positive signals" from congressional leaders, but stopped short of saying he and Goodlatte were in agreement.

"Our work continues to bring this issue to a boil," said Yoder. "Our effort is to encourage them to try to support our legislation or come to resolution on a committee bill in the 113th Congress."

With four more cosponsors, Yoder could request the bill be brought to the House floor in an expedited fashion, bypassing the Judiciary Committee. And in Thursday's Google Hangout, Yoder and Democratic cosponsor Rep. Jared Polis (D-Colo.) pressed hard for that option.

"It's better if we do it on suspension with as strong a vote as possible," said Polis. "It's a very limited and straightforward concept. If it gets to the floor, it ups the Senate's chances" of passing similar legislation.

Update: Goodlatte has appeared lukewarm to the legislation, according to two people familiar with the talks, who asked not be named because the negotiations are ongoing. "I think certainly Goodlatte has proven to be a roadblock on ECPA reform and somewhat similar to the dynamic on NSA reform, he's unwilling to move unless he's forced to move," said one of the people. "And right now it's unclear what the lever would be to force him to move."

Brian Fung covers technology for The Washington Post, focusing on telecommunications and the Internet. Before joining the Post, he was the technology correspondent for National Journal and an associate editor at the Atlantic.



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