• by Wendy Davis  @wendyndavis, March 19, 2013

Lawmakers in the Senate on Tuesday introduced an amendment to the federal privacy law that would give consumers more privacy protection for email messages as well as material stored in the cloud.

The Electronic Communications Privacy Act Amendments Act of 2013, unveiled by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah), would require law enforcement authorities to obtain a search warrant in order to access emails or other messages stored in the cloud.

The Electronic Communications Privacy Act currently allows law enforcement officials to obtain emails, or other electronic material, with only a subpoena -- providing the messages or other data has been in storage for more than 180 days. Material in storage for less than 180 days currently requires a search warrant.

Search warrants are harder to obtain than subpoenas, because judges are only supposed to sign search warrants if the police have probable cause to believe that the material sought will yield evidence of a crime. By contrast, subpoenas only require a showing that the information sought is relevant to an investigation.

Digital rights advocates have long urged lawmakers to reform ECPA, which was passed in 1986 -- well before many people even used email. At the time, storage capacities were so limited that it was reasonable to assume that any messages left in storage for more than six months had been abandoned.

The Center for Democracy & Technology praised the proposed legislation as a "common sense reform" that would "help extend Fourth Amendment rights in the Internet age."

While debate about the issue has been percolating, at least one federal court has ruled that ECPA is unconstitutional. In that case, the the 6th Circuit Court of Appeals ruled in 2010 that the Fourth Amendment requires law enforcement authorities to obtain search warrants to access people's emails, notwithstanding ECPA.

Separately, the House Judiciary Committee held a hearing on Tuesday about whether to revise the wiretap tap to give consumers more protections in their emails. Google's Richard Salgado, director of law enforcement and information security, said in written testimony that the current law "frustrates users’ reasonable expectations of privacy."

Salgado added that law enforcement authorities should have to obtain search warrants to access users' electronic messages and documents. "Users expect, as they should, that the documents they store online have the same Fourth Amendment protections as they do when the government wants to enter the home to seize documents stored in a desk drawer," he testified.

The Department of Justice also said at Tuesday's hearing that it now supports the idea that emails in storage for more than 180 days shouldn't be treated differently than newer emails.  Elana Tyrangiel, acting assistant attorney general, said in written testimony that some portions of the ECPA that "may have made sense in the past have failed to keep up with the development of technology, and the ways in which individuals and companies use, and increasingly rely on, electronic and stored communications."

She added: "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."