House Passes Bill Requiring Search Warrants to Search Older Emails

Law enforcement would have to get a warrant to remotely search email files more than six months old

House Passes Bill Requiring Search Warrants to Search Older Emails
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February 9, 2017

The U.S. House of Representatives unanimously passed new legislation to update existing federal laws and require law enforcement to get a warrant to remotely search email files more than six months old.

A simple voice vote passed the Email Privacy Act, which had more than 100 co-sponsors from both major parties.

The bill is an attempt to update the Stored Communications Act, which regulates how law enforcement is allowed to access electronic communications stored remotely.

At this time, a warrant is required to get to messages that were created within the past 180 days, while older files require a simple administrative subpoena.

Under the Email Privacy Act, warrants—which have to show probable cause—would be required for searching these files regardless of their age. Subpoenas could still be used to gain general user and account information but not the contents of users' emails or stored files.

Though privacy advocates and tech companies had hoped that a requirement would be included for the government to inform most users that their files are being searched, there was no such requirement contained in the Act. Critics of the current laws argue that when the FBI raids office buildings searching for files, the agency serves the warrant in person and everyone knows what's happening. They believe that law enforcement should still have to comply with this aspect of warrants even when people can't see their files being searched.

Although the bill allows email providers to notify affected users about warrants and subpoenas, it also includes several circumstances—such as flight risk for a suspect, risk of physical harm to an individual, potential for tampering, and "otherwise seriously jeopardizing an investigation or unduly delaying a trial"—in which the government can request that the court prevent providers from disclosing this information for up to 180 days. This gag order would then be renewable for periods of up to 180 days each.

Some tech giants are angry over these kinds of gag orders, such as Microsoft, which right now is suing the federal government to be able to notify its users that their files have been searched.

A previous version of the Act died in the Senate when Judiciary Committee members attempted to include amendments weakening the legislation by creating emergency loopholes in the warrant requirement.

The current version will now be sent to the Senate.