Updating ECPA -- The Email Privacy Act

The House Judiciary Committee had a hearing yesterday on HR 699, the Email Privacy Act. The bill, which has more than 300 co-sponsors in the House (!) would update the Stored Communications Act to apply a warrant requirement to law enforcement requests for email content from internet service providers. This would be generally consistent with the holding of the Sixth Circuit back in 2010, in US v. Warshak, where the court held that Americans have a reasonable expectation of privacy in their email communications. I testified at the hearing. To give you a flavor of my testimony, here is the conclusion of my written statement:

The time is ripe for change and the principle is clear – in the normal law enforcement context, police and FBI officers should have no more access to our stored email than they do to our stored private letters. Technology has changed the way we live. Today everyone stores their email in the cloud. But the law hasn’t kept up. That’s why Congress needs to modernize the law. Senators and Representatives have introduced bi-partisan bills to update ECPA into the 21^st century. Both chambers should give the proposals plenary consideration.