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Email less private than regular letters? Congress considers law change

WASHINGTON — A law regulating authorities' access to email drew a good deal of attention in Congress on Tuesday as a House panel quizzed Department of Justice and Google experts about it, and the Senate began considering a bill to update the rules.

The Electronic Communications Privacy Act (ECPA), passed in pre-Web 1986, does not require government investigators to have a search warrant when requesting access to old emails and messages stored online, providing less protection for them than, say, letters stored in a desk drawer or even messages saved on a computer's hard drive.

Investigators can access technical information about emails with a subpoena, which has a lower legal threshold than a warrant because it does not involve a judge and therefore easier to obtain. A subpoena also can give access to emails that are more than 180 days old and sometimes newer emails if they are opened.

But tech companies, including Google, recently started to object, refusing to disclose old messages without a warrant, as privacy advocates say digital messages should not be treated differently than physical private communication.

Senator Patrick Leahy, the Vermont Democrat who chairs the Judiciary Committee and authored the original Electronic Communications Privacy Act 27 years ago, on Tuesday introduced legislation to update the law by requiring a search warrant if the government wants to read emails stored with third-party providers.

A subpoena would still be enough for access to some technical data about the messages.

The bill also spells out a previously lacking requirement that government authorities notify the user whose emails are being disclosed and does away with distinction in legal standards based on the age of an email.

The elimination of distinctions based on how old communications are received backing from Elana Tyrangiel, acting assistant attorney general at the Justice Department, which interpreted the law for such differentiation.

"There is no principled basis to treat email less than 180 days old differently than email more than 180 days old," she told the a House judiciary panel on Tuesday.

"These 180-days, opened-unopened distinctions haven't kept pace with the way the technology is used today," she said.

Richard Littlehale of the Tennessee Bureau of Investigations told the panel that more than anything, law enforcement authorities hope for a directive to third parties on how fast they should comply with proper legal requests for data — a divisive topic not addressed by Leahy's bill.

"Whatever the level of standard of proof, the thing that matters to us most ... is prompt response," Littlehale said.

At the same time, both government officials underscored that subpoenas are the norm for obtaining business records during corporate investigations.

Richard Salgado, Google's law enforcement and information security director, reiterated his company's refusal to honor subpoenas in either civil or criminal investigations.

Republican Congressman Louie Gohmert of Texas questioned Google's access to customer email as the company places ads based on words that appear within messages. Google has said its automated scanners identify key words but do not disclose actual information about the user or message content to advertisers.

Gohmert wondered whether the federal government could request information on users whose emails or searches contain particular words. Google's Salgado rejected such possibility.