On April 29, 2016, in a 419-0 vote, the U.S. House of Representatives passed a bill to amend the 30-year-old Electronic Communications Privacy Act of 1986 (ECPA) to eliminate an exception to the government warrant requirement for old emails stored by Internet service providers (ISPs), and make other changes.
In 1986, when President Reagan signed the ECPA into law, users of so-called “electronic mail” used dial-up modems to access and retrieve text messages transmitted through their ISPs. At the time, cloud computing options did not exist for typical end users, and it was nearly inconceivable that people would allow messages they intended to retrieve to be stored indefinitely by their ISPs. Indeed, at the time, some ISPs would automatically convert the electronic messages into hard copy and mail them to the user if the messages were not accessed within a defined period. Accordingly, at the time, some considered old emails on a third-party server to be abandoned, like yellowing letters in a forgotten mailbox. The ECPA, which presciently extended Fourth Amendment protections to electronic communications held by third parties, therefore required the government to obtain a warrant for emails held by an ISP 180 days or less, but not for older emails. The Patriot Act left the ECPA’s 180-day distinction unchanged, and the 180-day distinction remains in effect today.
The proposed Email Privacy Act (EPA), H.R. 699, if signed into law, would eliminate the 180-day distinction and require a warrant for both old and recent emails stored by third-party ISPs, among other amendments. The EPA also would affect the ability of ISPs to notify users of government requests for information, including warrant receipts, and would extend the “exigent circumstances” delayed-notification period from 90 to 180 days in some cases.
With dramatic intervening changes to the manner in which people use and store emails, including the advent of cloud computing, the 30-year-old distinction between older and newer emails seems increasingly inconsistent with consumer expectations of privacy. The House of Representatives appears to agree. The Senate, which in the past has considered − but failed to pass − similar amendments, will now decide whether the EPA gets a trip to the president’s desk, or whether the 180-day distinction and existing consumer notification rules should survive the current administration.