Under the Electronic Communications Privacy Act of 1986 (“ECPA”), the government can gain access to emails and other electronic communications that are more than 180 days old. This has been termed the “180-day rule,” whereby the government only needs a subpoena to obtain the electronic communications of subscribers from electronic communications service providers. A renewed attempt to reform this decades-old legislation began on Wednesday, February 4, when Senator Lee (R-Utah) and Senator Leahy (D-Vt.) introduced the Electronic Communications Privacy Act Amendments Act of 2015.

In a press release about the bill, Senator Leahy, the author of the ECPA, said, “These reforms would protect Americans’ digital privacy – in their emails, and all the other files and photographs they store in the cloud.  It builds consumer trust, and it provides law enforcement agencies with the proper tools they need to ensure public safety. This is a bipartisan issue, and now is the time to act swiftly to bring Americans’ privacy rights and protections into the digital age.”

The bill reflects amendments to the ECPA that Sens. Leahy and Lee previously proposed in 2013, but that bill did not achieve a floor vote. The proposed amendments would provide clarity to some ambiguous provisions in the ECPA, including the following:

• It amends ECPA by eliminating the so-called “180-day rule,” instead specifying a single standard by requiring that the government obtain a search warrant based on a showing of probable cause in order to access emails and other electronic communications that are in electronic storage (e.g., photos stored on a Dropbox account), regardless of how old they are.
• It provides clarity to the current law and would continue to permit the government to obtain certain subscriber information, such as names and addresses, from service providers, as long as the government has obtained a subpoena.
• It requires that the government provide timely notice, including a copy of the warrant and other details about the information obtained, to the subscriber whose electronic communications were disclosed.
• It prohibits an electronic communications service provider from voluntarily disclosing the contents of its subscribers’ emails or other electronic communications to the government. Limited exceptions to this prohibition would remain, such as disclosure to address criminal activity.
• It contains a rule of construction regarding government access to internal corporate email. It states that nothing in the bill shall be construed to limit the authority of a governmental entity from using a subpoena to acquire email or other electronic communications obtained from an intended recipient, or obtained directly from a company when the communications are to or from an officer, agent, or employee of the company and the company is acting as an electronic communications service provider for its own internal email system.

The ECPA Amendments Act of 2015 has six additional cosponsors, and the House version has 227 cosponsors. The ECPA Amendments Act of 2015 may have a stronger chance of becoming law than its 2013 predecessor, given the strong showing of support from stakeholders.

Reporter, Jennifer Raghavan, San Francisco, +1 415 318 1234, jraghavan@kslaw.com.