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i2Coalition Issues Statement of Support for Email Privacy Act

Yesterday we issued a statement of support for the Email Privacy Act (H.R. 387), which was introduced by Representatives Kevin Yoder and Jared Polis. The Act makes much-needed updates to the Electronic Communications Privacy Act (ECPA), an outdated law that sets standards for government access to email and storage. The i2Coalition has advocated for ECPA reform since 2014.

For the past three Congresses, advocates from across the political spectrum have called for ECPA reform.  In particular, the i2Coalition supports reform of a small, but outdated, provision of ECPA which allows warrantless access to data. The access is based on an antiquated understanding of technology standards that no longer apply to modern electronic communications. Warrantless access to data under ECPA is contrary to U.S. due process requirements, undermines confidence in the privacy of data, and has not been demonstrated to have an appreciable positive effect on law enforcement activities.

ECPA reform is of critical importance to Internet Infrastructure providers. While the deficiencies in ECPA are well documented, two are known to be especially troublesome for i2Coalition members and the industry at large:

  • ECPA significantly increases costs for Internet infrastructure providers by creating a complex set of rules for access to data. These rules do not reflect the current use of technology. This makes developing compliance plans difficult and increases the possibility that sensitive information will be disclosed.
  • Warrantless access to data by U.S. law enforcement entities discourages the adoption of cloud technology.

With a vote of 419-0 the House previously passed the Email Privacy Act (HR 699) in April of 2016. We previously wrote about the hurdles the Email Privacy Act would face in Senate and elsewhere in May of 2016.

By ending ECPA’s archaic ‘180-day rule,’ which permits email communications to be obtained without a warrant after 180 days, the Act will restore confidence on the Internet by providing clear rules for government access to our most sensitive communications.  Trust in Internet providers will increase when Internet users can clearly understand how the government gains access to emails, texts, notes, photos, and other sensitive information stored in the cloud.

The Act is an opportunity to clarify that email content is protected by the Fourth Amendment and that a warrant is required to gain access to this content. Moreover, the Act simply codifies current DOJ and FBI policies, as well as resolves a split in Federal court interpretation of the Fourth Amendment as it applies to email.

Representatives Yoder and Polis deserve particular thanks for continuing to press this issue over many Congresses.  We will work with both Representatives to ensure swift passage of the Act in both the House and Senate.

For additional information on the Act, please see our member Golden Frog’s statement of support.

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