Email privacy legislation stalls in Senate

The Senate Judiciary Committee is holding off on further action on the Electronic Communications Privacy Act, as members are divided on warrant standards for email intercepts. The bill would update a 1986 legal framework that treats email stored on a computer differently than email stored on a remote server when it comes to law enforcement search.

"I fully support the warrant-for-content standard that this bill requires," Senate Majority Whip John Cornyn (R-Texas.), a cosponsor of the bill, told the committee during a May 26 markup. "But in order for this bill to actually become law, it has got to reflect the interest of all stakeholders, which is the reason why I circulated a couple of amendments to the bill."

Those amendments include one that would allow the FBI to obtain information and records on individuals only if the agency can prove that there is a current investigation on that person related to international terrorism or clandestine intelligence activities. This does not include any contents of the electronic communication, which has been a heated debate between industry and law enforcement in recent months.

"You don't usually have me coming in here advocating for the Administration's position," Cornyn said, "but I happen to agree they're right on this one, and as I say, reflects the important negotiations among the important stakeholders in the federal government."

Other amendments deal with consent, to permit law enforcement agencies to access records of an individual unable to give permission for a search, and allow for law enforcement access in other exigent circumstances. Sen. Lindsay Graham (R-S.C.) offered an anti-botnet bill as an add-on to the measure.

The House counterpart to the bill, the Email Privacy Act, passed without opposition under suspension of the rules on April 27.  

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said, "Most folks agree that given the way Americans use email today, it hardly makes sense that the privacy protections for an email should turn on whether it's more than 180 days old, or whether it's been opened.  The privacy of Americans must be protected, and that privacy simply shouldn't depend on an email's age at all."

Six other lawmakers offered amendments as well. Sen. Patrick Leahy (D-Vt.), the ranking member of the committee, said, "I understand we will hold the bill over and attempt to work through those issues over the next two weeks."

The Senate is scheduled to reconvene in early June.