Nov. 26, 2012 at 3:19 PM ET
A generation ago, when the Electronic Privacy Communication Act was passed, "the cloud," a term for massive server storage of private emails, documents and photos, didn't exist. Now some lawmakers are looking to amend the 1986 law so that information stored in the cloud would require a warrant by the police who want that information from either the cloud storage provider or the individual.
That amendment to the Electronic Communications Privacy Act of 2012, the first major changes to 26-year-old law, is expected to be considered by the Senate Judiciary Committee on Thursday.
Right now, law enforcement needs only a subpoena, issued by a prosecutor, to search cloud-based storage, whether it's for emails or documents that are shared for collaboration on sites like Google. A bill by Sen. Patrick Leahy, D-Vermont, would instead require law enforcement to obtain a search warrant issued by a judge.
"The bill pending at the Senate Judiciary Committee to update the Electronic Communications Privacy Act is long overdue," said Greg Nojeim, senior counsel and director of the Center for Democracy & Technology's Project on Freedom, Security & Technology, told NBC News.
"Requiring a warrant for email and other information stored in the cloud would provide privacy to consumers, certainty to law enforcement, and clarity to the companies that receive law enforcement demands."
The ACLU, too, is backing the change. "We believe the statute is very out of date," Christopher Calabrese, ACLU legislative counsel, told NBC News. "All email and all private communications should be covered by a warrant," and not just a subpoena.
Law enforcement groups are opposing the cloud-based warrant requirement. The battle comes as courts continue to wrangle over whether law enforcement should be allowed to track an individuals' cellphone information without a warrant.
"The crime scene of the 21st century is filled with electronic records and other digital evidence," wrote representatives of various investigative, legal and police agencies via the National Sheriffs' Association in a letter to the Senate Judiciary Committee.
If anything, the agency representatives said in the letter, "laws, policies, protocols, and practices related to the process of law enforcement evidence retrieval from communications service providers are out-of-date and increasingly insufficient moving forward."