The Electronic Communications Privacy Act 18 U.S.C. § 2510-22 (1986) (“ECPA”) concerns the ability of third parties, including law enforcement agencies, to access Internet content, including emails and social media content. Congress is currently weighing amendments to the ECPA amid a national discussion on the framework for Internet privacy and civil liberties. The amendments that may emerge in the coming session may have an impact on the ability to obtain electronic discovery from Internet sources, as well as the government’s ability to obtain content in investigations and prosecutions.

Major technology companies, such as Twitter, Microsoft, and Facebook, as well as privacy advocacy groups from across the political spectrum, have been advocating for reform of the ECPA. See Somini Sengupta, “Updating an Email Law From the Last Century”, The New York Times, April 24, 2013, available at http://www.nytimes. com/2013/04/25/technology/updating-an-email-lawfrom-the-last-century.html. The stated goal for amending the ECPA is to clarify and bolster the privacy rights of individuals with respect to their emails and online content. The Senate Judiciary Committee has already unanimously passed a bill, the Electronic Communications Privacy Act Amendments Act of 2013, proposed by Senator Patrick Leahy (the “Bill”), that would require the government to obtain a judicial search warrant in order to gain access to personal emails and all other electronic content held by a third-party service provider. 113th Cong. S.B. 607 (2013), available at senate-bill/607. The Bill is currently awaiting approval of the full Senate.

The most significant amendments proposed by the Bill address the confidentiality of electronic communications, the elimination of the 180-day rule (whereby the warrant requirement concerning the contents of emails turned on whether they had been stored unopened for more than 180 days), search warrant requirements and the disclosure of customer information including login and access records. See Bill at 2.

The proposed amendments in the Bill reflect the principles in the opinion issued by the court in United States v. Warshak, 631 F.3d 266 (6th Cir. 2010). In Warshak, the defendant stood accused of fraud. In the course of its investigation, the United States government compelled Warshak’s Internet service provider to provide the content of approximately 27,000 of his emails without first obtaining a search warrant. See id. at 283. The court considered whether there is an expectation of privacy concerning the contents of email. The court held that “a subscriber enjoys a reasonable expectation privacy in the contents of his emails ‘that are stored with, or sent or received through, a commercial ISP’” and that “the government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.” Id. at 288.

In deciding the case, the court put most of its focus on the historical protections of the Fourth Amendment as applied to phone calls and letters. The court viewed a search to be in violation of the Fourth Amendment when “the government infringes upon ‘an expectation of privacy that society is prepared to consider reasonable.’” Id. (citation omitted). The Warshak court then articulated a two-prong test to determine whether such a violation has taken place: first, whether the individual by his conduct has exhibited an actual “subjective expectation of privacy”; and second, whether society was willing to recognize that expectation as reasonable. Id. at 284.

The Warshak court reasoned that, “given the fundamental similarities between email and traditional forms of communication it would defy common sense to afford emails lesser Fourth Amendment Protection.” Id. at 285- 86. The proposed amendments to the ECPA reflect this reasoning.

The Bill would prohibit providers of remote computing or electronic communication services to “knowingly divulge to any Governmental entity the contents of any communication…or any record or other information pertaining to a subscriber…” without a search warrant. Bill at 20. This amendment would prohibit the types of disclosures made by the Internet service provider in Warshak. Additionally, the Bill requires that notice that the warrant has been issued be provided to that customer no more than 10 business days later (although extensions to this time limit can be granted by a court). See Bill at 23. This provision would seek to remedy the absence of a notice requirement in the current ECPA, as noted in Warshak.

While the Bill is currently awaiting approval of the full Senate, it is interesting to note the exceptions contained within the proposed amendment. Mo s t no t abl y , i t s warrant requirement does not apply to any other federal criminal or national security laws, including the gathering of information pursuant to the Foreign Intelligence Surveillance Act (a topic that has attracted much attention in recent months). See Bill at 10. Its practical impact on certain types of proceedings may therefore be limited, but the amendment goes a long way toward addressing the anachronisms in the existing statute.