Senate Judiciary approves email warrant bill
The Senate Judiciary Committee approved April 25 a bill that would amend the Electronic Communications Privacy Act of 1986 by requiring law enforcement to obtain a warrant before accessing any online email or other stored electronic communication.
The bill would eliminate a statutory distinction between stored online emails older than 180 days and unopened emails newer than that threshold. Under current law, the Justice Department must obtain a warrant to see the latter but obtain just a subpoena to read the former. Current statutory language also permits law enforcement to retrieve with a subpoena opened emails stored online; some federal courts--including the Sixth Circuit in U.S. v. Warshak (.pdf)--have found that ECPA provision to be unconstitutional.
The Obama administration has said it supports a warrant requirement for all emails. The bill also creates a notification requirement, requiring the target of a warrant for electronic communications to be notified within 10 business days (3 business days when a non-law enforcement agency is granted the warrant). Federal agencies could petition the court to delay notification for up to 180 days on grounds such as that notification would endanger a life, cause flight from prosecution or evidence tampering, lead to witness intimidation or otherwise seriously jeopardize an investigation or delay a trial.
The bill does not make a warrant exception for federal civil investigators, something the Obama administration says ECPA modernization should include on the grounds that the standard for investigators to access corporate records is a subpoena. Making corporate emails harder to obtain than paper records would create an anomaly that would hinder investigations, Elana Tyrangiel, acting head of the Office of Legal Policy, told a House Judiciary subcommittee earlier this year.