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New bill would oversee government access to your email

Patrick Leahy

Sen. Patrick Leahy (D-VT) has drafted a bill that updates an antiquated Electronic Communications Privacy Act.

Federal law enforcement agencies soon may have their hands tied when it comes to accessing your email and other personal data if a new bill currently making its way through Congress becomes law.

Laws governing the privacy of your emails were drafted in the mid-1980s, long before AOL and Gmail. But efforts to update those rules have some fearing the government's fingers will be flipping through their digital mail.

Senate Judiciary Committee Chair Patrick Leahy, D-Vt., has drafted a substitute bill for the Electronic Communications Privacy Act, which was originally written in 1986 long before things like electronic archiving and cloud storage. The update, which will be under review next Thursday, modernizes rules for police seeking to obtain private email for investigative purposes -- rules that had been surprisingly lax.

“Technology [today] is fundamentally different than anything thought of in the 80s,” said Alan Butler, an advisory counsel member with the Electronic Privacy Information Center. “The standard amount of storage was much smaller when the bill was originally written,” he told FoxNews.com.

'The statute has not undergone a significant revision since it was enacted in 1986 -- light years ago in Internet time.'

- The Digital Due Process coalition

Butler and others say that the update is meant to do away with the “180-day rule,” which says law-enforcement agencies need a mere administrative subpoena and not a court-approved warrant to access email messages older than six months. Currently, police agencies can simply say that they think a particular email is relevant to an investigation and force an Internet company to hand it over, without a judge's OK.

More recent emails would require a warrant, and Leahy’s bill would make a court-approved warrant mandatory to obtain and view private emails from any time frame. But tech website CNET reported Tuesday that Leahy had tweaked the bill, leading to fears that anyone’s email could be accessed with or without a warrant.

"Leahy's rewritten bill would allow more than 22 agencies -- including the Securities and Exchange Commission and the Federal Communications Commission -- to access Americans' e-mail, Google Docs files, Facebook wall posts, and Twitter direct message without a search warrant," wrote CNET's Declan McCullagh.

Officials from the Judiciary Committee flatly refuted such accusations.

“Senator Leahy does not support a broad carve-out for warrantless searches of email,” an aide for the committee told FoxNews.com.

The aide, who asked that her name be withheld, confirmed that talks will continue next Thursday after concerns were raised by certain law-enforcement agencies. While some changes to the bill might be added, revisions would likely not be drastic.

The Digital Due Process coalition, a group of major technology companies and privacy groups including Apple and Microsoft, has pushed for reform of the ECPA. 

"The Electronic Communications Privacy Act (ECPA) was a forward-looking statute when enacted in 1986, the group's website states. "Technology has advanced dramatically since 1986, and ECPA has been outpaced. The statute has not undergone a significant revision since it was enacted in 1986 -- light years ago in Internet time."

Representatives of the coalition did not respond to FoxNews.com phone calls.

“This fight is about level of access,” Butler said. “The oversight will disappear after 180 days, but a whole new problem could occur. A good example is with the recent incident involving General Petraeus.”

"You could start with looking for a particular communication between two people but while doing so, you could find links to other things that you weren’t looking for. But the thrust of the act is good overall.”

“The question is whether it will change with any new language drafted next week,” he added.