White House Won’t Pressure Congress On Email Privacy, Warrantless Searches

The White House has officially responded to a petition calling for more email privacy, and the response isn’t a promise of action. Instead, the White House acknowledges that the law central to the petition does indeed violate basic privacy expectations, and agrees that email should have better protections — but passes the buck quickly to Congress.

The petition, which garnered 113,035 signatures before it was closed, refers to the Electronic Communications Privacy Act, or ECPA. That law requires a warrant for law enforcement to search through recent email messages — those dated within the past 6 months, or marked unread — but allows free access to any email older than 6 months. The petition calls for stricter rules regarding privacy in electronic communication and notes that numerous bills to correct the problems with this law have been floated, to no avail.

In the White House response, a representative for the Obama Administration agrees with all the claims put forth.

“It’s obvious that many — and arguably, most — Americans today use email as one of their primary means of communication. Particularly in an era where we keep so much of our lives online, the content housed there deserves strong privacy protections — which is at the core of what ECPA was designed to do. But over time, technology has evolved.”

“Which is why our policy teams agree with you: ECPA is outdated, and it should be reformed.”

The response explains that when the ECPA was initially passed, email privacy was a different world than it is today. An email older than six months was more like a letter found intact in a pile at the dump than a letter in a bureau drawer.

“The Act treats 180-day-old emails as effectively abandoned.”

Those aren’t subject to any privacy protections. The response does note one workaround for keeping an older email within the guidelines of the ECPA though.

“It accords emails marked ‘unread’ a different standard of protection.”

Most, if not all, email programs allow a message to be marked as ‘unread’ even if it has been opened.

However, the representative goes on to affirm that the Obama Administration agrees that email privacy is important, and that law enforcement should have to obtain a warrant to access these messages, just like newer ones. However, the administration is leaving it to Congress.

“We aren’t going to endorse a single ECPA-reform bill at this time.”

While the response does accurately point out that Congress debates and considers the merits of various bills, it’s also fair to recognize that a White House public endorsement of, if not a specific bill, at least the need for reform, could pressure lawmakers to act.

The ECPA, in 1986, served as an update itself to the Federal Wiretap Act of 1968 — a law which addressed privacy on phone lines, but didn’t address electronic communications.

Better protections of email privacy are long overdue, but it doesn’t appear that the White House will press Congress on them at this time. (You can, though, if you so choose.)

[Photo by:Win McNamee/Getty Images]