Senate Judiciary Committee Unanimously Approves Warrant Requirement for Email

d3e5patrick leahy Senate Judiciary Committee Unanimously Approves Warrant Requirement for Email

Yesterday the Senate Judiciary Committee
approved amendments to the Electronic Communications Privacy
Act (ECPA) that require the government to obtain a search warrant
before looking at people’s remotely stored email, regardless of
whether the messages have been opened or how old they are. As I
noted in my
column this week, ECPA currently requires a warrant only for
unopened messages up to six months old; the rest can be accessed
through court orders or administrative supboenas based on the claim
that they are relevant to an investigation, as opposed to the
warrant standard of probable cause to believe they contain evidence
of a crime. This distinction, based on the assumption that people
download email to their own computers and that copies on servers
are made only to facilitate transmission, is so clearly out of date
that it is impossible to justify.
Still, I am surprised that no one voted against the changes,
which were introduced by the committee’s chairman, Patrick Leahy
(D-Vt.). ;In particular, Charles Grassley of Iowa, the ranking
Republican on the committee, had expressed concern that the warrant
requirement would impose an unreasonable burden on law enforcement
agencies. Grassley proposed an
amendment that would have allowed warrantless access to email
“for purposes of investigating a crime involving child abduction or
kidnapping, child pornography, or a violent crime against a woman.”
It was defeated by a vote of 11 to 6. ;
amendment, by Leahy himself, lengthened the amount of time that
an agency can delay notice to someone whose email it seeks from
three to six months, presumably in response to complaints from
people like Grassley. Then a third
amendment, by John Cornyn (R-Texas), limited that extension to
law enforcement agencies. Ordinarily notice would be required
within 10 days, but the court issuing the warrant could approve a
delay based on concerns that notification may result in
“endangering the life or physical safety of an individual,” “flight
from prosecution,” “destruction of or tampering with evidence,”
“intimidation of potential witnesses,” or “otherwise seriously
jeopardizing an investigation or unduly delaying a trial.” Notably,
the six-month delay permitted for law enforcement agencies is twice
as long as the delay currently
allowed and much longer than the one recommended by George
Washington law professor Orin Kerr in his widely cited 2004

guide to ECPA reform:

The current ninety-day delay period is simply too long. In
all ;but very unusual cases, ninety days of delay is a period
out of proportion to ;the legitimate law enforcement interests
in delay articulated in ;§ 2705(a)(2). It may be reasonable for
law enforcement to have a thirty-day delay of notice if they are
investigating a crime and the notice may tip ;off the suspect.
The thirty-day period gives the police time to assess
the ;evidence, pursue leads, and indict the target if
necessary. But in most ;cases, giving the government ninety
days serves no legitimate purpose, ;especially given that
courts can grant extensions of delayed notice for ;additional
periods if circumstances warrant. Shortening the delay
period ;would still allow the government to delay notice for
legitimate reasons but ;would help ensure that notice delayed
does not become notice denied. ;

Yet Leahy
claims doubling the delay is necessary “to help with sensitive
law enforcement investigations.”
Unlike an ECPA reform bill that Leahy
proposed last year, this one does not address the requirements
for obtaining
geolocation data from cellphone companies, leaving police free
to claim that they can demand a record of your whereabouts at will.
The legislation, which amends a bill already approved by the House,
is not likely to be enacted during this session but presumably will
be the starting point for ECPA reform next year.


Senate Judiciary Committee Unanimously Approves Warrant Requirement for Email

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