When the 1986 ECPA (Electronic Communications Privacy Act) was enacted, we inhabited a much different world – a world that didn’t include email.
As a result, The United States Justice Department is coming under fire for not rapidly adapting to modern times.
The ECPA, after all, doesn’t mandate government investigators to have a search warrant when seeking access to old emails and messages stored online.
Investigators can access technical information about emails with a subpoena, which has a lower legal threshold than a warrant because it does not involve a judge and therefore easier to obtain. A subpoena also can give access to emails that are more than 180 days old and sometimes newer emails if they are opened.
The long-awaited ECPA update may finally be on the horizon, Reuters reported Tuesday as DoJ attorney Elana Tyrangiel testified before the US House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.
“We agree, for example, that there is no principled basis to treat email less than 180 days old differently than email more than 180 days old,” Tyrangiel said.
The statement comes as Google recently confirmed that it objects to handing over email access without a warrant.
Pending legislation mandating a search warrant for times in which the government wants to read private emails stored with third-party providers could become law before year’s end.