Does US Finally get Email Privacy?

Since the days of the initial launch of Google’s Gmail 11 years ago, the procedures for email surveillance have grown fuzzy. According to The Hill, a long awaited attempt to clear up some of this fuzziness is going to get a hearing, at least in the lower house of congress. A new piece of legislation with over 300 co-sponsors will try to update the 1986 Electronic Communications Privacy Act by closing a loophole in the act.

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To understand the loophole, you have to know the history. In 1986, the ECPA was written in such a way as to allow law enforcement to be able to view any email stored on a provider’s servers longer than 6 months with only a simple subpoena instead of a warrant. Though that does not seem like much time by today’s standards, when the law was written, people did not have the space then.

Users with accounts on providers like Compuserve (one of the first email providers) received a maximum of 2-4 mb of space. People download their emails to their own machine, therefore, they would be removed from the the provider’s servers. An account that had emails older than 6 months was thought to be abandoned. When Google launched Gmail, they gave users an available space of 1gb. That meant people would be able to store their email without having to delete it.

The ECPA usage has nearly stopped because of constitutional issues. However, there is one government agency that still uses it and is asking for what they call carve outs. Since the Security and Exchange Commission (SEC) lacks the ability to obtain warrants, they want to be allowed to continue what they are doing. The law is useful for them in obtaining such information. Instead, they would rather give the user the ability to challenge the subpoena, rather than lose the power all together.

The hearing on closing the loophole will have several speakers from the FBI, and from the SEC as well. Both groups use a familiar argument that without these types of concessions, law enforcement would have a more difficult time conducting investigations. Andrew Ceresney from the SEC also stated that such carve outs would “offer even greater protection to subscribers than a criminal warrant, in which subscribers receive no opportunity to be heard before communications are provided”.  Many of the email service providers, like Google,  feel this move is only a distraction by the SEC.  Whether we see Email privacy in the future shall be seen, but this seems to be a step in the right direction.

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