“YES” on the Email Privacy Act (H.R. 699)

On Wednesday, the House will vote on the Email Privacy Act (H.R. 699). Introduced by Rep. Kevin Yoder (R-KS) 84% and cosponsored by over 190 Republicans, this bill would update the Email Communications Privacy Act (ECPA) by bringing privacy protection standards for electronic communications into the 21st Century.

When ECPA became law in 1986, it was intended to extend Fourth Amendment protections to communications conducted over the Internet. Since 1986, technology has changed rapidly, but the law remains virtually the same.  As such, it fails to provide much needed privacy protections.  The goal of the Email Privacy Act is to improve these standards, providing stronger privacy protections for communications in response to changes in technology. As Heritage has written:

“To read Americans’ mail as it is in transit with the Postal Service, the government generally needs a warrant issued by a neutral magistrate and must have probable cause to believe the search will provide evidence of a crime.

“To read the content of email messages stored on a cloud server, the government does not need a warrant at all—it can view the content by issuing a subpoena to the cloud service provider.”

H.R. 699 would prohibit the government from accessing private email accounts, as mentioned, without a warrant. Besides requiring a warrant to access private emails, H.R. 699 also eliminates the different rules for emails less than 180 days old vs. emails 181 days or older, and ensures that cloud providers are subject to the same warrant requirement as non-remote counterparts.

In 2013, Heritage Action joined Digital 4th, a coalition committed to online privacy, as part of an effort to advocate precisely for the ECPA reforms contained in H.R. 699. When joining the coalition, Tim Chapman, chief operating officer of Heritage Action for America, stated that:

“The free market, American competitiveness and individual liberty are necessary for our economy to succeed and nation to prosper….ECPA reforms will not only help protect the individual freedoms we are guaranteed by the Constitution, but also ensure our laws continue to encourage success in our technology and cloud computing industries.”

Additionally, The Heritage Foundation has written extensively about the need to update ECPA in such a way as to preserve law enforcement and government agencies ability to protect the homeland.  In a legal memorandum published in 2014, Evan Bernick, a visiting Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies, argues that:

“Americans need not choose between Fourth Amendment precedent and protecting important privacy interests. Congress should consider revising the ECPA to address the privacy concerns raised by ever-evolving tracking technology. The tools are ready at hand.”

The Email Privacy Act, as amended at the House Judiciary Committee, strikes a balance between protecting personal privacy as guaranteed by the Fourth Amendment while maintaining law enforcement’s ability to pursue potential criminals and threats to the homeland.  The time to update ECPA, and ensure that all law-abiding American citizens have their online privacy and digital communications protected, is now.  

Heritage Action supports H.R. 699 and will include it as a key vote on our legislative scorecard.

Heritage Action: Reps. Yoder and Graves Introduce ECPA Reform
Heritage Action: Senate Committee Passes ECPA Reform
Heritage Action for America Joins Digital 4th Coalition to Reform Online Privacy
Heritage: Is the Government Reading Your E-Mail?
Heritage: Protecting Americans’ Privacy: Why the Electronic Communications Privacy Act Should be Amended
Heritage: If Government Needs a Warrant to Read Our Mail, Why Not for Our Email as Well?
Heritage: Cybersecurity Information Sharing: U.S. Security, Prosperity, and Freedom in Cyberspace