Senate Judiciary Committee Adopts ECPA Reform Substitute Amendment Requiring Warrant for Content; VPPA Would Allow One-Time Consent
Today, September 20, 2012, the Senate Judiciary Committee adopted an amendment to H.R. 2471, which would require law enforcement to obtain a warrant based on probable cause in order to compel an electronic communications service provider or a remote computing service to produce email or other stored content. While the VPPA portion of the bill was originally addressed just towards clarifying how companies may obtain consent to disclose video rental histories on the Internet, it has become a vehicle for a significant new change to the Electronic Communications Privacy Act.
The ECPA amendment, if it becomes law, would eliminate law enforcement’s ability under 18 U.S.C. 2703(b), to obtain email content that has been in electronic storage more than 180 days pursuant to a subpoena or an order under 2703(d). The amendment thus aligns ECPA with United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010), which held that law enforcement could not compel a provider to turn over the contents of subscriber emails based on a mere subpoena without a showing of probable cause. It further expands the holding of Warshak to cover all email content held by a third party mail provider and all uploaded content held by a third-party provider (to the public) of computer storage and processing services.
Note – the bill was NOT reported out of committee, the amendment was adopted as a substitute, but the bill will be marked-up in November after the recess.