Why Isn’t John Carney Supporting H.R.1852, the Email Privacy Act?

Since the Supremes pretty clearly told law enforcement that they needed to get a warrant to search your cell phone, there has been renewed attention on H.R.1852, the Email Privacy Act. Introduced by Representative Kevin Yoder [R-KS-3] in May 2013, this law would revise the 1986 Electronic Communications Privacy Act, requiring subpoenas to search emails, no matter how long they had been stored (they can now look at email stored for more then 180 days without a warrant) and allowing ISPs to communicate to the targets that their emails were requested by law enforcement. As of this writing (6.29.2014), John Carney has not joined the 220 Representatives (138 R, 82 D — BIPARTISANSHIP!) who are looking to refine the due process around law enforcement looking at your emails.

Now, the 220 means that a majority of the House would vote to pass this bill. A bill that increases your privacy some and helps make sure that law enforcement does not have as many opportunities to simply troll though your email. It is a pretty simple bill, fixing a pretty big hole in due process. Yet, for all of the Bipartisanship Theater we are treated to from Rep. Carney on behalf of business interests, he doesn’t seem to be nearly as interested in bipartisanship in the service of giving you back a piece of your privacy.

So what’s up with that?

Summary of the Bill:

Email Privacy Act – Amends the Electronic Communications Privacy Act of 1986 to prohibit a provider of remote computing service or electronic communication service to the public from knowingly divulging to any governmental entity the contents of any communication that is in electronic storage or otherwise maintained by the provider.

Revises provisions under which the government may require, pursuant to a warrant, the disclosure by such a provider of the contents of such communications. Eliminates the different requirements applicable under current law depending on whether such communications were stored for fewer than, or more than, 180 days. Requires a law enforcement agency, within 10 days after receiving the contents of a customer’s communication, or a governmental entity, within 3 days, to provide the customer a copy of the warrant and a notice that such information was requested by, and supplied to, the government entity.

Provides that nothing in this Act shall be construed to limit the authority of a governmental entity to use an administrative or civil discovery subpoena to: (1) require an originator or recipient of an electronic communication to disclose the contents of such communication to the governmental entity; or (2) require an entity that provides electronic communication services to employees or agents of the entity to disclose the contents of an electronic communication to or from such employee or agent to a governmental entity if the communication is held, stored, or maintained on an electronic communications system owned or operated by the entity.

Authorizes a governmental entity that is: (1) seeking a warrant for the contents of communications to include in the application a request for an order delaying the notification required for up to 180 days, in the case of a law enforcement agency, or up to 90 days, in the case of any other governmental entity; and (2) obtaining the contents of a communication, or information or records, to apply to a court for an order directing a provider of electronic communication service or remote computing service to which a warrant, order, subpoena, or other directive is directed not to notify any other person of the existence of the directive for up to 180 days, in the case of of a law enforcement agency, or up to 90 days, in the case of any other governmental entity. Provides for extensions.

Requires service providers, after such extension, to provide the government three business days’ notice of their intent to inform a customer or subscriber that the provider has disclosed the individual’s electronic communications information to the government.

Directs the Comptroller General to report to Congress by September 30, 2015, regarding the disclosure by electronic communication service providers of customer communications and records, including an analysis and evaluation of such disclosure under provisions: (1) as in effect before the enactment of this Act, and (2) as amended by this Act.