On February 6, 2017, the U.S. House of Representatives unanimously passed the Email Privacy Act (the “Act”), co-sponsored by Representatives Kevin Yoder (R-KS) and Jared Polis (D-CO), which would require law enforcement to obtain a warrant to search any email messages, regardless of the age of the emails.  The Act has garnered wide support among technology companies and civil liberties groups, but could face continued opposition from Republicans in the U.S. Senate. 

Under current law (the Stored Communications Act, enacted as part of the 1986 Communications Privacy Act), a warrant is required for the disclosure of the contents of emails stored for 180 days or fewer.  See 18 U.S.C. § 2703.  However, email messages stored for a longer period may be disclosed under an administrative subpoena, which does not require court approval.  Moreover, an administrative subpoena in some cases permits notice to the subscriber of the request to be delayed for up to ninety days.  In United States v. Warshak, 631 F.3d 266 (2010), the U.S. Court of Appeals for the Sixth Circuit held that email subscribers have a reasonable expectation of privacy in their stored email messages under the Fourth Amendment, rendering these warrantless search options unconstitutional.  However, in the years since, no other federal appellate court has reached the same conclusion. 

The Act has a long history in prior sessions of Congress, most recently having passed the House unanimously in 2016 only to be derailed in the Senate Committee on the Judiciary, where it faced an amendment intended to weaken its restrictions with respect to exigent circumstances.  That amendment, offered by then-Senator Jeff Sessions (R-AL), would have required disclosure of email contents (as well as metadata) upon a “certification … that an emergency involving the danger of death or serious physical injury requires disclosure without delay.”

Whether the same fate awaits the Act in the 115th Congress remains to be seen, particularly given the recent confirmation of Senator Sessions as U.S. Attorney General.  Email storage was an issue in the 2016 presidential campaign, and this attention could make the Act more salient to activists in both parties.