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Business Q&A: Electronic Communications Privacy Act out of line with modern technology

Thomas Snyder, director with Crowe & Dunlevy, discusses proposed changes to the Electronic Communications Privacy Act.
by Paula Burkes Published: April 19, 2013

The bottom line is the proposed amendment seeks to establish that an individual has a reasonable expectation of privacy, protected by the Fourth Amendment, in the contents of their email accounts in the hands of ISPs.

Q: What is the Department of Justice's position with respect to the changes, and why is the DOJ distinguishing between ISPs and corporate emails stored on their own servers?

A: The DOJ is not opposing the elimination of the 180-day rule, but there are concerns. For example, under current law, the government can issue a subpoena to any corporation for records of regularly conducted activities, which almost always include electronic communications. A warrant is not required. DOJ objects to any amendment to the ECPA that would require a search warrant for such routine business records. DOJ is concerned about new search warrant and notification requirements applying to civil investigations, where theoretically no criminal allegations are raised. The government couldn't meet the requirement to obtain a formal search warrant in such a case.

Q: How will this affect individuals and their privacy when it comes to emails?

A: Individuals will have additional assurance the government can't obtain their private electronic communications without at least demonstrating grounds to believe there is evidence of a crime contained therein. Some ISPs, like Google, have adopted a position that they wouldn't disclose such records without a warrant. The bill now makes that position the general rule and establishes a blanket expectation of privacy in email.


by Paula Burkes
A 1981 journalism graduate of Oklahoma State University, Paula Burkes has more than 30 years experience writing and editing award-winning material for newspapers and healthcare, educational and telecommunications institutions in Tulsa, Oklahoma...
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