Way back in early December of last year District Dispatch reported that the Email Privacy Act (H.R. 699), legislation to plug an enormous hole in Americas’ constitutional privacy rights by rewriting the 1986 Electronic Communications Privacy Act (ECPA), had finally got a hearing in the House Judiciary Committee. “Strong further advocacy by librarians, in harness with our many coalition partners,” we wrote, “may well be what it takes to ‘spring’ HR. 699 from the Committee in which it’s been mired for years but from which, this week, it may just have begun to emerge. Stay tuned!” As it happens, that’s exactly what it took over the past six months not only to have the Email Privacy Act clear the Committee, but for the House of Representatives to pass it unanimously last week by the unheard of vote (for any bill not naming a post office) of 419 – 0.
Librarians and library supporters were among the thousands of Americans to contact their Representatives to push for passage of H.R. 699, and ALA consistently was among scores of national organizations keeping the pressure on key legislators to abandon their efforts to weaken the bill with an exception for civil agencies like the Securities and Exchange Commission (SEC) and IRS as late as the day before the vote. Eventually, they did, paving the way for this week’s hugely positive result.
The successful joint effort produced a bill that will amend ECPA so that, for the first time, any authority seeking the actual content of an individual’s emails, texts, tweets, online photos, files stored in the cloud and other electronic communications will first have to get a real search warrant from a real judge. Previously, for anachronistic reasons, the full content of most such communications and documents were simply available by subpoena once they were more than sixth months old. (This ACLU infographic lays it all out very well.)
BUT, ECPA reform’s not a done deal yet. The Senate now needs to act, either by passing H.R. 699 as written (as ALA and its coalition partners will be urging it to do), or to take another path like considering the Senate’s own similar bill, S. 356. In either event, ECPA reform’s fate rests with Senate Judiciary Committee Chairman Charles Grassley who’s reportedly open to moving a bill but may be flirting with embracing the “civil agency carve-out” clause ultimately rejected by the House but still being actively sought publicly by the SEC. If he does, that might prove the end of ECPA reform for this Congress as most bill-backers, ALA among them, view that proposal as an exception that will swallow the rule and, therefore, unacceptable.
Sooooo . . . absolutely do take a (half) bow for the House’s action at this historic half-way point in the march to ECPA reform but, as we said six months ago, “stay tuned!” The fight’s not nearly over yet.