Washington, D.C. (April 13, 2016) – Today the House Judiciary Committee passed out of committee the Email Privacy Act (H.R. 699) by a vote of 28-0. This bill is a long overdue update of the Electronic Communications Privacy Act (ECPA), a bill passed in 1986 that governs the treatment of electronic communications. The Email Privacy Act establishes that law enforcement officers must obtain a warrant to access the content of most electronic communications and cloud-stored content from third-party providers and eliminates the arbitrary rule that would allow the government to obtain emails older than 180 days with a subpoena.
The National Association of Criminal Defense Lawyers (NACDL) is heartened that the Judiciary Committee has strengthened the Fourth Amendment protections by ensuring that the government must obtain a warrant based on probable cause to access email content and other electronic communications and content stored in the cloud. NACDL remains concerned, however, that the bill as amended removes the requirement for law enforcement to provide notice to an individual that their electronic communications and documents stored online, such as emails, texts, photos, and notes, among others, have been obtained from their provider and provides no remedy to those whose communications may have been obtained improperly.
NACDL President E.G. "Gerry" Morris said: "Today's vote recognizes the seismic shift in the use of electronic communications and cloud storage over the past thirty years and brings government practice in line with the Fourth Amendment. However, NACDL is concerned with the stripping of the government notice provision and lack of remedy. Just as a person has notice that law enforcement has a warrant to search their house, they should also be notified of a warrant to search their private electronic communications or documents stored online. Additionally, as the bill moves forward it should be amended to provide a suppression remedy for anyone whose electronic communications or stored online content were obtained unlawfully. Notice and an available remedy are critical components of preserving a meaningful Fourth Amendment right."
The bill now moves to the full House for approval. NACDL urges both House and Senate lawmakers to enact common sense ECPA reform.
To learn more about NACDL's work in the area of privacy and the Fourth Amendment, visit http://www.nacdl.org/fourthamendment.
Also visit NACDL's 2012 white paper: "Electronic Surveillance & Government Access to Third Party Records."
Contacts
Ezra Dunkle-Polier, NACDL Public Affairs & Communications Assistant, (202) 465-7656 or edunkle-polier@nacdl.org for more information.
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.