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The Fight Over Email Privacy Moves to the Senate

February 8, 2017

The House passed the Email Privacy Act (H.R. 387) yesterday, bringing us one step closer to requiring a warrant before law enforcement can access private communications and documents stored online with companies such as Google, Facebook, and Dropbox. But the fight is just beginning.

We’ve long called for pro-privacy reforms to the 1986 Electronic Communications Privacy Act (ECPA), the outdated law that provides little protection for “cloud” content stored by third-party service providers. H.R. 387 would codify the Sixth Circuit’s ruling in U.S. v. Warshak, which held that the Fourth Amendment demands that the government first obtain a warrant based on probable cause before accessing emails stored with cloud service providers. While imperfect—the House-passed bill doesn’t require the government to notify users when it obtains their data from companies like Google—the reforms in the Email Privacy Act are a necessary step in the right direction.

EFF and more than 60 other privacy advocates, tech companies, and industry groups wrote to lawmakers asking them to approve the Email Privacy Act.

Now the Senate needs to take up the measure and send it to the president’s desk without weakening it. Despite the fact that the House voted 419-0 to pass the Email Privacy Act last year, it stalled in the upper chamber, where senators attempted to use the incredibly popular bill to attach additional provisions that would have harmed Internet users’ privacy.

Such “poison pill” amendments included one that would have expanded the already problematic Computer Fraud and Abuse Act, one that would have allowed the FBI to get more user information with National Security Letters, and amendments that could have made it easier for law enforcement to abuse the exemption in the law that grants access to user data in the case of emergencies without judicial oversight.

Senators need to be vigilant about fending off these kinds of amendments when the Email Privacy Act is considered in the Senate this time around.

The House’s unanimous vote on the Email Privacy Act last year and yesterday’s voice vote demonstrate bipartisan agreement that the emails in your inbox should have the same privacy protections as the papers in your desk drawer. We urge the Senate to swiftly pass the H.R. 387 to protect online content with a probable cause warrant.

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