In the debate over email privacy, law enforcement has usually been on the side claiming a warrant requirement when accessing email would impede investigations. It’s a good sign then when the largest law enforcement agency – the Department of Justice – comes out in support of a warrant requirement.
The Hill reports that Attorney General Eric Holder told the House Judiciary Committee that the Justice Department would be in support of legislation that requires law enforcement to obtain a warrant before accessing email. His support gives a major boost to those who want to update the ECPA – a decades old bill that allows law enforcement to obtain emails without a warrant as long as said email is more than 180 days old.
Of course, Holder did have some reservations. He said that any update to the ECPA should include exemptions for “certain very limited circumstances.” For example, he said that law enforcement agencies shouldn’t have to obtain a warrant for civil investigations.
It was encouraging, however, to hear that Holder is in support of “the general notion of having a warrant to obtain the content of communications.” It’s only slightly less encouraging to think that his idea of exemptions may cut our large swaths of the bill, thus making it less effective.
If the Justice Department truly is in favor of updating the ECPA, it will be interesting to see which one it comes out in favor of. Many hope that it would support Rep. Zoe Lofgren’s bill – The Online Communications and Protection Act. It’s a far reaching bill that not only requires a warrant before accessing email and other online communications, but also requires a warrant when accessing any geolocation data from mobile device carriers.
Lofgren’s bill may be too far reaching for the Justice Department though. It may instead opt to back something like the ECPA Amendments Act of 2013, a bill from Sen. Patrick Leahy that only requires law enforcement to obtain a warrant when accessing email. It says nothing about geolocation data.
Regardless, the Justice Department’s support may not even be enough to pass anything this soon. Both the House and the Senate are wrangling with other issues at the moment, and it looks like ECPA reform has been put on the back burner yet again.