Email privacy bill passes committee in the Senate

The Senate Judiciary Committee has approved legislation requiring that police obtain a search warrant to gain access to private emails and other forms of electronic communication.

The bill, championed by committee Chairman Sen. Patrick J. Leahy (D-Vt.), updates legislation developed before the widespread adoption of the Simple Mail Transfer Protocol that forms the backbone of modern email networks, let alone Facebook or Twitter.

Privacy advocates, such as the ACLU, applauded the vote.

“This is an important gain for privacy,” ACLU legislative counsel Chris Calabrese said in a statement. “We believe law enforcement should use the same standard to search your inbox that they do to search your home.”

And Electronic Frontier Foundation staff attorney Lee Tien described the vote as “a strong message to the Department of Justice that our digital 4th Amendment rights don’t expire after six months.”

But Sen. Charles E. Grassley (R-Iowa), the ranking Republican on the committee, was critical of the bill, calling for a more open debate and input from more interested parties from both sides.

“Given that the House isn’t going to take this bill up, we should work to ensure we strike the proper balance between privacy and safety, just as we did in 1986 when we first passed ECPA,” the Electronic Communications Privacy Act of 1986, he said.

Under ECPA, police need only a judge-approved administrative subpoena to look at emails and similar messages older than 180 days. The new bill would eliminate that provision so that law enforcement faces a more intensive litmus test to gain access. Leahy, who has served in the Senate since 1974, co-sponsored the very bill he’s amending.

Leahy’s bill came under fire last week after a report from CNET alleged that Leahy had made extensive concessions to law enforcement, including allowing federal agencies, including the Securities and Exchange Commission and the Federal Communications Commission, to read electronic communications without a search warrant. Associate U.S. Atty. Gen. James Baker, speaking to the committee last year, said the bill could have an “adverse impact” on criminal investigations.

A substitute bill was adopted and placed before the committee in September, providing the baseline for Thursday’s markup, after law enforcement groups, including the National District Attorneys Assn. and National Sheriffs’ Assn., requested additional consideration. The senator from Vermont quickly denied the report.

Leahy has said he anticipates that the bill will not reach the Senate floor until next year.

[For the Record, 8:51 p.m. PST Nov. 29: This post has been corrected to state that instead of being the bill being tabled, a subsitute was adopted by the committee in September.]

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