Ranging from Adobe to the ACLU, from Facebook to FreedomWorks, and from Twitter to the Taxpayers Protection, a coalition of more than 80 civil liberties groups and tech companies has sent a pair of letters to Congress meant to nudge the House and Senate into moving ahead with a vote on legislation that would require e-mails stored longer than six months to be accessed only by a warrant.
In the House, at least, the immediate goal of the letter is to prompt Speaker John A. Boehner (R-Ohio) and Judiciary Committee Chairman Bob Goodlatte (R-Va.) into holding hearings, markups and, eventually, a floor vote on the Email Privacy Act (H.R. 1852).
Why six months -- or, as the law has it, 180 days exactly? Because in olden times you would go and retrieve your e-mail from a third-party server, in much the same way that you might go and get your mail out of your mailbox. E-mail left on servers longer than that seemed, in a legal sense, unwanted and thus undeserving of strong privacy protections. A subpoena was enough. Same went for unopened e-mails, which get less privacy protection than read ones. As Georgetown Law Professor Marc Zwillinger has testified before Congress: in the past, opening an e-mail meant moving it from a remote computer to your own; e-mails left on a server were considered abandoned. The Email Privacy Act would erase that outmoded distinction.
Those questions today are covered by the Electronic Communications Privacy Act. But that bill, which at the time represented a strengthening of the privacy protections that applied to digital communications, was passed in 1986. That's 18 years Before the Gmail era. Web mail has changed the way e-mail works: Gmail, famously, lacked a "delete" button until two years after it launched. But the law still behaves as if we're all still using whatever it is we used to do e-mail back in the day.
The goal of the pair of letters to Congress is to both lean on leaders to make moves on the bill as well as to respond to the major concern that seems to have stymied its progress. The bill has been wending its way through the House for some time, but it has recently reached a critical mass of co-sponsors, now standing at 265. Its Senate companion bill has just seven co-sponsors, but one of them is powerful Senate Judiciary Committee chairman and privacy-reform-gatekeeper Patrick J. Leahy (D-Vt.). The others Senate co-sponsors are Republicans Mike Lee (Utah), Rand Paul (Ky.) and Jerry Moran (Kan.), and Democrats Tom Udall (N.M.), Jeanne Shaheen (N.H.), and Jeff Merkley (Ore.).
In making the case, the advocates are framing the bill as "such a simple fix," in the words of Rep. Kevin Yoder (R-Kan.), who is championing the bill with Rep. Jared Polis (D-Colo.): More a bug correction than an operating-system overhaul a la the more sweeping USA FREEDOM Act.
But the bill has opponents, namely the Securities and Exchange Commission. The SEC has reportedly pushed for an exception to the bill that would apply to its own enforcement efforts. But the bill's proponents are rejecting that carve out, telling congressional leaders Wednesday that "it would prejudice the innovative services that we want to support, creating one procedure for data stored locally and a different one for data stored in the cloud. For these reasons, we oppose a carve‐out for regulatory agencies or other rules that would treat private data differently depending on the type of technology used to store it."
Tech companies and their allies have had some degree of trouble getting what they want from Washington, from patent reform to immigration reform to privacy reform. That one agency with 4,200 employees is holding up even such a targeted fix is demonstration of how much work they have left to do. But those companies and groups are working every day to figure out how to lock in the changes they'd like to see. Whether, and how, they can get the Email Privacy Act passed is one way of knowing where they are on that learning curve.
The coalition closes out its letters to Congress by articulating their belief that if the Email Privacy Act is given a real chance, it will pass. Thus "proving to Americans and the rest of the world," they write, "that the U.S. legal system values privacy in the digital age."
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