State legislation proposed last week seeks to accomplish what federal lawmakers have repeatedly failed to do—protect emails from the prying eyes of law enforcement.

The law recognizes as a fundamental right that the government can’t read a U.S. citizen’s snail mail without first getting a judge to issue a search warrant based on probable cause that a crime has been committed. That guarantee is not extended to email communications. Yet.  

Senate Bill 467 would require the authorities to obtain search warrants before demanding that service providers turn over emails. The bill would also apply to messages and profiles stored on Facebook, Twitter and other social networking sites. Currently, emails that have been saved on a server for more than 180 days or have already been opened by the recipient are fair game.

That lack of protection for emails is dictated by the archaic Electronic Communications Privacy Act (ECPA) of 1986, passed back in the infancy of personal computers, when technology made long-term storage of email impractical. Now, increased storage capacity has ushered in the age of cloud computing and mail is regularly archived on servers for years.   

“Both state and federal privacy laws have failed to keep up with the modern electronic age, and government agencies are frequently able to access sensitive and personal information, including email, without adequate oversight,” state Senator Mark Leno (D-San Francisco) said in announcing the bill he sponsored.

Last December, the U.S. Senate abruptly dropped an amendment from a bill that would have required federal law enforcement agents to obtain a warrant before monitoring email or other data stored remotely. Senator Patrick Leahy (D-Vermont) has repeatedly tried, and failed, to reform the Act.

As it now stands, the authorities merely have to assert they have reasonable grounds to believe the information they are seeking is relevant to an investigation in order to obtain an administrative subpoena for the information.

–Ken Broder

To Learn More:

CA Senator Says Email Seizure Needs Warrants (by Philip A. Janquart, Courthouse News Service)

EFF Backs New California Bill to Protect Email Privacy (Electronic Frontier Foundation)

New Leno Legislation Protects Email Privacy (State Senator Mark Leno)

Congress, at Last Minute, Drops Requirement to Obtain Warrant to Monitor Email (by Noel Brinkerhoff, AllGov)