California State Senator Pushing for Warrants for Email Searches

Earlier this week, California state senator Mark Leno introduced a bill which would require all law enforcement agencies operating under the state’s jurisdiction to receive a warrant before reading the email of private citizens.  

Under the provisions of the Electronic Communications Privacy Act of 1986, law enforcement agencies can request access to emails that have already been opened by the intended recipient or have been stored on servers for more than 180 days.  While these provisions seemed reasonable at the time of passage, they fail to take into account the massive amounts of online storage available via email providers today.  Worse, depending upon the backup regimens of the email provide an email deleted by the individual user might still be available via an online backup share for quite some time.  Again, the ECPA is not quite as clear on this point as it might be.

Lest you think this movement is limited to California, there were additional reports this week that there appears to be consensus building re: modifying the ECPA at a national level.  In a hearing held on 19 March by the Judiciary subcommittee on Crime, Terrorism, Homeland Security and Investigation, Rep. Jim Sensenbrenner (R-Wis.) said that only requiring a subpoena instead of a warrant to access emails is "outdated and probably unconstitutional."  Of course, believe that a law needs to be amended and making pronouncements to that effect is markedly different than deciding how to amend the law or agreeing on a timetable for action.

You can read the report on the California action here, and the article re: action on the Hill here.