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Email Privacy Act passed by House, but don't get your hopes up

Will it die in the Senate as it did once before? Even if it does pass, would Trump sign it?
Written by Steven Vaughan-Nichols, Senior Contributing Editor

Do you want the IRS, FBI, or SEC looking into your email without a warrant? Probably not. That's why a bipartisan group of lawmakers reintroduced the Email Privacy Act after it failed to pass last year. This law would keep your email from government snoopers without a warrant. This time, the bill passed the House of Representatives by a unanimous voice vote.

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The House wants to make sure your email and cloud data is kept private. Now, the question is: Will the Senate and Trump agree?

That's a good start. The real challenge will be getting passed by the Senate and then getting President Donald Trump to sign it.

In its last run, the Email Privacy Act died without coming to a vote. This happened because Republican Senator John Cornyn and current Attorney General Jeff Sessions glued surveillance-friendly amendments to it.

Sessions wanted to give law enforcement the power to demand data from internet firms without a warrant in "emergency" cases. In fact, the Electronic Communications Privacy Act (ECPA) already grants the government the right to obtain records in an "emergency involving danger of death or serious physical injury to any person." Cornyn wanted an amendment that would allow the FBI to obtain electronic communications metadata and other information without a warrant, on the basis of a National Security Letter.

At the time, Democrat Senator Patrick Leahy called Cornyn's amendment a "poison pill" designed to derail the law. We can expect Cornyn will push for a similar amendment this time.

The current draft of the law doesn't have the wholehearted approval of privacy protectors. The American Civil Liberty Union (ACLU) objects to it because it "gutted a key privacy protection." Specifically, "the bill eliminated individuals' basic right to be notified if the government requests access to electronic content information. The result is that Americans will have no guarantee that they would even know when the government accesses their most sensitive content information be they intimate photos, financial documents, or even personal emails."

Still, the ACLU "recognizes that even the current version of H.R. 387 represents an improvement over today's outdated and inadequate law."

Co-sponsor Congresswoman Suzan DelBene, a Democrat representative from Washington state and former Microsoft VP, agrees: "After spending two decades in the technology sector where things evolve at light speed, it is hard to believe that we're starting another year with laws that were written for how computing worked in the 1980s. Meanwhile, cloud-based services become more ubiquitous with every passing day, highlighting the absurdity that current law provides greater protections for a letter in a filing cabinet than an email on a server."

Specifically, the Email Privacy Act will bring 1986's ECPA into the 21st century. ECPA is the main statute governing law enforcement access to email. If passed, government agents would have to get a warrant to look at your email messages. Current law allows law enforcement and government agencies to obtain your messages from email service providers or content from a cloud provider without a warrant if they're older than 180 days.

This is not a Democrat bill. It was first introduced by Kevin Yoder, a Republican representative from Kansas.

Adam Brandon, CEO of FreedomWorks, a right-wing lobbyist group, said:

"Current law suggests that you don't have a reasonable right to privacy on communication over 180 days old. Private communication is private, regardless of whether a third party is used to convey information or how long it has been. The Email Privacy Act should be passed by the Senate as is. We will reject any attempt to water down, weaken, or stonewall the privacy protections in this bill."

On the left, Chris Calabrese, VP of policy at Center for Democracy and Technology (CDT), said: "The House has acted to protect Americans' privacy. Now it's up to the Senate and the president to do the same."

Even with bipartisan support, it's hard to see the bill becoming law. The Senate is now dominated by pro-surveillance Republicans and Trump's Attorney General made it clear last year he doesn't respect email privacy.

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