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Loophole in Electronic Communications Privacy Act (ECPA) Allows Warrantless Search of Emails Older Than 6 Months

In Archive, ECPA, Internet, Surveillance, USA on August 10, 2014 at 2:23 PM



Greg Nojeim/Jake Laperruque/TheKernel:

Next time you open your personal email account, spend a moment browsing through the thousands of old messages you have saved. Compare your most recent messages with those that are more than six months old. Is there anything different between them? Does something change about your private communications after they hit that half a year mark?

According to the government, there is a huge difference: All those emails older than six months are subject to unwarranted search and seizure.

The reason for this is the Electronic Communications Privacy Act—commonly called ECPA—a law that defines the rules for government access to electronic communications such as email.

Generally, ECPA requires that police obtain a warrant before they can read an individual’s emails, just as they must get a warrant when they want to search a house or listen in on someone’s phone calls. But ECPA contains one highly problematic exception: If the email is over 180 days old, the statute says the government no longer needs a warrant—it can read your private communications with just a subpoena, which doesn’t require judicial approval. Worse still, draft emails, stored documents, and photos are available without a warrant regardless of how old they are, according to ECPA.

ECPA was adopted in 1986, back when email services could only store about two dozen messages, and an email more than 180 days old was considered “abandoned.” Modern email is entirely different. We receive dozens of messages every day, even every hour, and we permanently archive old emails not on our local devices but with services that can easily hold hundreds of thousands messages. Setting privacy protections to a 1980s standard is as crazy as trying to plug a floppy disc into a MacBook Air, but after nearly 30 years, ECPA is still waiting for an upgrade.

What more, the law’s 180-day rule is not only outdated; it’s also unconstitutional. In 2010, a federal Court of Appeals ruled in United States v. Warshak that the Fourth Amendment protects all emails from unwarranted search. Leading Internet companies now refuse to comply with subpoenas for older emails based on Warshak, but because the case is not binding nationally, legislative action is needed to remove the uncertainty and bring the law on the books back in line with citizens’ expectations.

Major tech companies and public interest groups from across the political spectrum want reform. Through the Digital Due Process coalition, we are urging Congress to close the 180-day loophole and apply the warrant standard to the contents of all private electronic communications— to treat all electronic documents, photos, messages, and other items stored in the cloud just as they would be if they were paper copies kept in a desk drawer.

These efforts have been paying off. Last year, Representatives Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) introduced the Email Privacy Act, a bill that would give ECPA its long-overdue upgrade. Even in our polarized Congress, there is a clear consensus that our personal emails deserve more protection than ECPA offers. The Email Privacy Act currently has 263 cosponsors, well over half the members of the House of Representatives, including a strong mix of Democrats and Republicans.

Despite the immense bipartisan support for this measure, however, progress remains at a standstill.

  1. […] three decade ago, considers email older than 6 months to be “abandoned” and therefore accessible without a warrant. Despite the fact that this has been ruled unconstitutional, it has not stopped government agencies […]


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