27 Year Old Law Regulating Electronic Communications Needs Updating

The Electronic Communications Privacy Act (ECPA) (18 U.S.C. §§ 2510–2522) was drafted in 1986, well before the iPhone and widespread usage of e-mail. So, it's encouraging that Congress has finally started to discuss updates to the ECPA to modernize its usage.

One hot topic that needs updating is the ability for government investigators to access your e-mail messages. According to the ECPA, as it currently reads, email messages in the gmail, yahoo mail, hotmail, and/or other third party e-mail service you use could be turned over by your service provider in response to a subpoena.

The threshold to obtain a subpoena does not typically involve a judge. Accordingly, it is relatively easy to obtain. However, in an effort to protect users, e-mail service providers have started to push back on responding to subpoenas that are seeking their users' e-mail messages.  As a result, lawmakers are now discussing with Google, the Justice Department, and others about this procedure.

The key issue is the different procedure required for physical documents in your office and/or electronic documents on the hard drive of your computer versus your e-mail messages. The documents require a search warrant, not just a subpoena. In accordance with the 4th Amendment, "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Accordingly, search warrants have a much higher threshold than a subpoena, which does not require probable cause.

With privacy advocates in favor of the more stringent requirements and Congress focusing in on the issue, we may see changes and updates this year to finally come in line with the 21st century.