May 10, 2013
Momentum to update the nation’s antiquated email privacy laws is again coursing through the Capitol — and this time, movement is coming from the right.
Republicans have been increasingly attaching their names to reforming the Electronic Communications Privacy Act — an issue where Democrats have traditionally taken the lead.
Four Republican congressmen introduced a pair of bills this week that would require government investigators to score a warrant before obtaining someone’s email content. Arizona Reps. Matt Salmon and Trent Franks are partnering on a House version of ECPA reform; Kansas Rep. Kevin Yoder and Georgia Rep. Tom Graves are teaming up on the Email Privacy Act.
Both bills are companion measures to legislation from Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) that cleared the Senate Judiciary Committee last month. Leahy has long been pushing to update the rules. This week’s Republican bills were an exclamation point after Lee officially signed on to Leahy’s push and Republican Rep. Ted Poe of Texas joined an ECPA reform measure by California Democratic Rep. Zoe Lofgren.
The growing support among lawmakers is easy to understand: The public doesn’t want it to be any easier for law enforcement to snoop through their emails. It’s fundamentally a Fourth Amendment issue, which guards against unreasonable searches and seizures — allowing Republicans to operate from their perch as constitutional defenders.
And it’s allowed some lawmakers to hold the IRS — never a GOP favorite — accountable. The agency made a manual public last month that said the agency could access emails older than six months without a warrant. The current federal statute allows agencies to use a subpoena to get a look at emails older than 180 days — but IRS news got the attention of lawmakers.
“That’s what prompted me,” Salmon told POLITICO. “When the IRS came out and said that they believe they can go into private people’s mails and, especially after 180 days — it’s fair game to go in and snoop, I take umbrage with that; I think most people would. That really is what prompted me to introduce the legislation.”
GOP support has beefed up on the advocacy side as well. Americans for Tax Reform has pressed on the issue for a while, but it took a more prominent stance earlier this year when it became a founding member of Digital 4th, a group that’s promoting an ECPA update and trying to get more lawmakers from both sides of the aisle on board. The Heritage Foundation’s advocacy arm joined that group soon after.
“We see this as [a] Fourth Amendment issue that should be bipartisan,” ATR federal affairs manager Katie McAuliffe said, adding that the prevalence of technology policy talk in recent years has brought the issue to the forefront. “It’s an extension of constitutional law, and that’s something that conservatives can really get behind.”
Republican House Judiciary Chairman Bob Goodlatte of Virginia and crime subcommittee leader Jim Sensenbrenner (Wis.) are, at least at a high level, on board with reform and have talked increasingly about making the issue a priority this year — although they may differ a bit on how to proceed.
House Judiciary held a key hearing in March on email privacy (and another last month on a related location privacy issue) where law enforcement representatives made news by saying that the warrant requirement proposal floated on the Hill had “considerable merit” — even as they also outlined a number of other ECPA changes they want to see that would help investigators do their job.
Those desires — like figuring out what to do for civil regulatory agencies that don’t have warrant authority or building in rules for how long digital communications providers have to keep data — remain the big questions on an issue that no longer seems as controversial. At Senate Judiciary’s markup, for example, Republican and Democrats alike voiced concern about the civil regulator issue in particular.
Any of those carve-outs or other tweaks, though, would still need to come legislatively, as they aren’t really included in the Leahy-Lee bill cleared by the Senate or the companions floated by the Republicans this week. It’s not clear whether Senate Judiciary Committee members — which cleared the bill on a voice vote — would withhold yes votes on the Senate floor if changes weren’t made.
For the time being, proponents — including the House Republicans who got involved this week — are keen to keep things simple and focus on installing the probable cause warrant rule.
“We want to protect American citizens from an overreaching federal government who just has a hunch, or a notion — or whatever,” Graves said.