Email Privacy Act Is on Apparent Glide Path in House Panel

House Judiciary Committee Chairman Bob Goodlatte (R-Va.). (Image via Flickr)

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) is making final tweaks to an email privacy bill with 314 House co-sponsors. That amendment appears to achieve a compromise that allows the long-stalled measure to move forward, with a key endorsement from a senior Republican privacy advocate.

Tech and civil liberties advocates have supported the bill for years.

The committee is slated to mark up the Email Privacy Act on Wednesday. Despite overwhelming support for the bill in the House, supporters have struggled to get it to a committee vote.

The measure would overhaul the 1986 Electronic Communications Privacy Act to require law enforcement to obtain a warrant before compelling a company to provide the contents of a customer’s emails or other electronic communications that have been stored for longer than 180 days. It would also require a warrant for communications held in cloud storage services.

Many of the bill’s supporters have blamed Goodlatte for stalling in response to concerns from civil enforcement agencies such as the Securities and Exchange Commission and the Federal Trade Commission. Both agencies have said they wouldn’t be able to investigate financial crimes under the measure.

Among other things, the changes floated by Goodlatte include a removal of notification requirements that would have obligated law enforcement to let the targets of their investigations know when they issue the warrants to a third party for the content of their emails.

The new version from Goodlatte toes the line between his hawkish national security side and the core privacy values that initially garnered the measure such strong support.

Even though talks are ongoing as final details haven’t yet been set, a key committee member and staunch defender of privacy joined some experts in the field on Monday in showing appreciation for Goodlatte’s compromise.

“I commend Chairman Goodlatte for finding a path forward on ECPA reform,” Rep. Jim Sensenbrenner said in an emailed statement to Morning Consult. “By recognizing that American’s emails are protected by the Fourth Amendment without exception, the amended bill preserves the most important feature of the Email Privacy Act.  And critically, it does so without compromising law enforcement’s ability to investigate crimes.”

The Wisconsin Republican, former chairman of the Judiciary Committee, is well-known as a warrior for privacy from government surveillance. Sensenbrenner played a key role in the USA Freedom Act.

A House Democratic aide also said the amendment could receive bipartisan approval. The aide said observers should not expect a large organized opposition to the most recent version from Democrats, despite its potential to weaken the bill in some areas.

The aide pointed to the amendment’s removal of notification requirements as a potential downside for privacy advocates.

The Electronic Frontier Foundation and the American Civil Liberties Union both find such notification important. The amendment would leave open the opportunity for providers to notify customers targeted by warrants on their own. It just doesn’t require them to do so.

Along with getting rid of the notification requirements, the new version would clarify that Congress has the power to compel a third party to provide the contents of emails and messages.

The amendment importantly keeps key the core privacy provisions intact. It’s warrant requirements would not put in place exceptions for agencies such as the SEC or FTC.

Goodlatte’s preservation of the legislation’s foundation could prove key to maintaining its massive support. Many in tech and privacy are looking for even more legislative fixes to address personal privacy, but they say they’ll take Goodlatte’s version to get it moving forward.

Daniel Castro, vice president of Washington think tank Information Technology and Innovation Foundation said “this bill will still deliver what so many in the tech community have been calling for.”

“On net, this is a very positive development if we can finally see some traction,” he said in an email. “There is broad bipartisan support for the reforms, so it is mostly a matter of coming to agreement on the final details.”

Berin Szoka, President of TechFreedom, said he finds the current draft of the amendment “promising.”

“It looks like we’ve finally gotten the vast majority of what we wanted from House Judiciary — on the warrant requirement for content,” Szoka said in an email.

Already, advocates are looking beyond the House. Szoka predicted that SEC and FTC lobbying might still play a role in the Senate. “Now, the fight shifts to the Senate to see whether, in particular, the civil agencies might finally back down from their insistence on getting an exemption from the warrant requirement,” he said. “This has been the main hold up there.”

The Senate version of the measure has 26 co-sponsors. The Senate Judiciary Committee held a hearing discussing it in September.

Morning Consult