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Thursday, April 25, 2013

Updating an E-Mail Law From the Last Century

Updating an E-Mail Law From the Last Century

Steven Warshak, a Cincinnati businessman who built an empire selling male sexual enhancement drugs, was convicted of wire fraud several years ago, based in large part on his e-mail correspondence, which authorities had extracted via a subpoena under a 1986 law governing electronic privacy.

Senator Patrick Leahy said overhauling the law is his top priority this year.

But a federal appeals court in Ohio later found that the government had violated Mr. Warshak’s constitutional right to privacy. The court said investigators should have convinced a judge that there was probable cause and obtained a search warrant, as though his messages had been stashed in a desk drawer. Although the court let the conviction stand, the case highlighted the conflicting legal rules that govern electronic privacy.

Congress is now set to clarify those rules, bringing that quarter-century-old law, the Electronic Communications Privacy Act, or E.C.P.A., in line with the Internet age.

On Thursday, the Senate Judiciary Committee will start deliberating a measure that would require the government to get a search warrant, issued by a judge, to gain access to personal e-mails and all other electronic content held by a third-party service provider.

The current statute requires a warrant for e-mails that are less than six months old. But it lets the authorities gain access to older communications â€" or bizarrely, e-mails that have already been opened â€" with just a subpoena and no judicial review.

The law governs the privacy of practically everything entrusted to the Internet â€" family photos stored with a Web service, journal entries kept online, company documents uploaded to the cloud, and the flurry of e-mails exchanged every day. The problem is that it was written when the cloud was just vapor in the sky.

Silicon Valley companies as well as advocacy groups from the political left and right have been lobbying for change for many years, and reform legislation seems to be gaining broad political support. Even the Justice Department appears to have approved one major change: requiring law enforcement to get a search warrant for all kinds of electronic content, no matter how long it has been in electronic storage or what exactly electronic storage means.

“Changing the law has become more of an imperative because of the growth of cloud computing, because everyone including members of Congress are storing sensitive info with third-party providers and they want it to be protected,” said Greg Nojeim, senior counsel at the Washington-based Center for Democracy and Technology, which is financed partly by Silicon Valley companies and which is part of a coalition pushing for reform. “The technology is advancing and people realize the law has to keep pace.”

Updating the bill could have a broader impact on civil cases as well, clarifying who can gain access to e-mails, photos and Facebook posts in corporate litigation and divorce court.

And it could lay out clearer rules for government agencies like the Internal Revenue Service to follow to gain access to private citizens’ e-mails. The agency told Congress recently that it seeks search warrants before reading taxpayer e-mails, though its written policy says otherwise, according to an information request filed by the American Civil Liberties Union.

Courts across the country, apparently baffled by how to apply the existing law, which applies to content held in “electronic storage,” have ruled in sometimes contradictory ways over the privacy of electronic material in both civil and criminal cases.

In one prominent case, Lee Jennings sued a relative of his wife who had broken into his Yahoo account and ferreted out e-mails describing an extramarital affair that were later used as incriminating evidence in divorce proceedings.

Mr. Jennings claimed a violation of his privacy under the electronic privacy act, but the highest court in his home state of South Carolina held that his e-mails, which sat on Yahoo’s servers, were not held in “electronic storage,” and therefore were not covered by the statute. A federal court in California years earlier had ruled differently in another case, interpreting “electronic storage” far more broadly.

A version of this article appeared in print on April 25, 2013, on page B1 of the New York edition with the headline: Updating an E-Mail Law From the Last Century.