Despite House Passage Again, Senate Impasse Continues Over Email Privacy Act
Despite the House again passing the Email Privacy Act (HR-387/S-1654) (see 1805250018) via amendment to the National Defense Authorization Act, there are no plans to move the bill with the Senate NDAA, said a spokesman for lead Democratic sponsor Sen. Patrick Leahy of Vermont Monday. Senate Majority Whip John Cornyn, R-Texas, remains opposed to the bill because he says it doesn't go far enough in protecting law enforcement interests.
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Sen. Mike Lee, R-Utah, told us he would have liked to see the bill attached to must-pass legislation, and sponsor Sen. Jeanne Shaheen, D-N.H., said House passage was a good sign. Neither Lee, Shaheen nor Sen. Cory Gardner, R-Colo., offered a specific plan in the Senate, and the House-Senate impasse on Electronic Communications Privacy Act (ECPA) change appears likely to continue (see 1606070035 and 1606090007). The bill would require police to obtain a search warrant, with probable cause, from a judge whenever seeking emails, photos or texts held by tech companies. ECPA allows law enforcement access to data from third parties if it’s six months or older. Microsoft and Google supported the bill previously.
Leahy and Lee repeatedly have introduced ECPA revision bills. Sens. Chuck Grassley, R-Iowa, Cornyn and others pushed for measures that allow more law enforcement access to data. Cornyn’s office didn’t comment.
Center for Democracy & Technology Vice President-Policy Chris Calabrese said he has seen no signs of movement in the Senate, though “things sometimes come up suddenly in the NDAA.” Monument Policy Group lobbyist Chan Park, who represents bill supporter Reform Government Surveillance, emailed there’s "broad bipartisan support for the privacy legislation in Congress but strong opposition" from some Senators with concerns about law enforcement. Unless those issues are addressed, "or those senators back off," it seems unlikely the Email Privacy Act will be included in the Senate version of the NDAA, he said. “In that scenario, I wouldn’t be surprised if ECPA language in the House bill gets stripped out of the NDAA in conference [committee].”
James Keefner, systems and security architect for Microsoft Cloud Solutions provider CloudFactors, emailed that ECPA is the industry’s real area of concern. With passage of the Clarifying Lawful Overseas Use of Data Act (see 1804030057), there are still “key aspects of privacy legislation that scream out for attention,” he said and law enforcement remains in the way of change: “Email Privacy had so many sponsors, cosponsors in the House, it should have come to the floor and passed in the last session.”
Sen. Mark Warner, D-Va., offered several unrelated amendments to the NDAA Monday. One would amend the U.S. cyber doctrine, requiring the country “respond accordingly should a foreign adversary launch a cyberattack in order to undermine our elections,” said his office.
The Email Privacy Act passed the House by unanimous voice vote in 2016, but Cornyn floated a controversial amendment in the Senate expanding FBI data access. The amendment would have widened government collection through national security letters, which are essentially administrative subpoenas. Lee and Leahy withdrew the bill, calling Cornyn’s measure a “poison pill.” House legislation passed unanimously again in 2017 (see 1702070011), but the Senate didn't reach consensus.