Congress Reviews Conflicting Rules Governing Electronic Privacy

United States: Congress is set to clarify conflicting rules to bring the 25-year old US Electronic Communications Privacy Act of 1986 (EPCA) in line with the Internet Age following a 2010 federal appeal court ruling in Ohio which concluded that the Government had violated the rights of a defendant during a previous legal case.

Businessman Steven Warshak was convicted of wire fraud several years ago based on evidence taken from his e-mail correspondence, evidence which authorities had extracted via a subpoena under the EPCA.

But the appeals court said criminal investigators should have convinced a judge that there was probable cause and obtained a search warrant first, as though his messages had been stashed in a desk drawer. Although the court let the conviction stand, the case highlighted the conflicting legal rules that govern electronic privacy.

Senate Judiciary Committee

sox it compliance, Gramm-Leach-Bliley ActToday the the Senate Judiciary Committee will start deliberating a measure that would require the government to get a search warrant, issued by a judge, to gain access to personal e-mails and all other electronic content held by a third-party service provider. Currently, a warrant is required to get hold of emails that are less than 6 months old but seizure of older communications require only a subpoena and no judicial review. Rather oddly, emails already opened also fall under this latter rule.

 “Changing the law has become more of an imperative because of the growth of cloud computing, because everyone including members of Congress are storing sensitive info with third-party providers and they want it to be protected,” said Greg Nojeim, senior counsel at the Washington-based Center for Democracy and Technology.

“The technology is advancing and people realize the law has to keep pace”  Nojeim said.

Electronic Privacy

Updating the Act could have a broader impact on civil cases as well, clarifying who can gain access to e-mails, photos and Facebook posts in corporate litigation and divorce court. And it could lay out clearer rules for government agencies like the . to follow to gain access to private citizens’ e-mails. The agency told Congress recently that it seeks search warrants before reading taxpayer e-mails, though its written policy says otherwise, according to an information request filed by the . Courts across the country, apparently baffled by how to apply the existing law, which applies to content held in “electronic storage,” have ruled in sometimes contradictory ways over the privacy of electronic material in both civil and criminal cases.

Lobbying to update the Act has produced an unlikely coalition in Amazon and Google which both offer cloud-based services to consumers and businesses, as well as start-ups like Evernote and Tumblr, which operate modern-day private diaries. They have joined with advocacy groups as diverse as the and .