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Email privacy and ECPA: new law could give more security to our messages?

New amendment has been proposed to the Electronic Communications Privacy Act (ECPA) to modernize and increase the protection of emails and electronic communications in general.

ftFrom 1986 to 1987 the Internet Protocol became a standard  procedure on PCs and the number of networks increased from 2,000 to 30,000. But, one hand the development of technology increased, on the other the Protocol is the same of 1986.

In this sense, several technology and internet companies have joined forces with conservative and liberal organizations in a show of solidarity for a proposed amendment to the 1986 Electronic Communications Privacy Act.

In July 12 letter to the Senate, companies such as Microsoft, Oracle, Intel, Adobe, Facebook, Twitter, Google, and Yahoo urged passage of the amendment, which would modernize the ECPA and increase the level of protection given to emails and electronic communications from the government.

Under the current law, the emails left after 180 days old in servers like google and yahoo are considered to be abandoned under the ECPA, and the government only needs a “subpoena” or “court order” to get them.

The proposed amendment from Senators Patrick Leahy (D-Vermont) and Mike Lee (R-Utah) would force government agencies to get a warrant before they could access any emails or electronic communications stored on third-party servers.

Here the essential part of the letter: “Consumers and businesses large and small are increasingly taking advantage of the efficiencies offered by web-based email servers and cloud-based storage and computing..”Removing uncertainty about the level of legal protection afforded such information will encourage consumers and companies, including those outside the U.S., to utilize these services.

The letter also expressed opposition to a proposal from the Securities and Exchange Commission granting the agency an exemption from the amendment: it was adressed to SEC Commissioner Mary Jo White cautioned that the amendment would have a “significant negative impact” on the SEC’s enforcement capabilities. White argued that getting a subpoena or warrant for emails every single time was impractical and would encourage individuals or entities under investigation to delete incriminating emails. Instead, White proposed preserving the SEC’s ability to get emails directly from third-party providers, “in appropriate circumstances.”

Instead, the companies and organizations argue that the traditional system should be maintained. A regulatory agency serves a subpoena on the jètarget of its investigation forcing the target to turn over documents relevant to the subpoena.

The amendment has galvanized companies and organizations of all persuasions. Supporters of the amendment include: the U.S. Chamber of Commerce, conservative political organization Americans for Tax Reform, Tea Party group FreedomWorks, and internet civil liberties groups such as the Electronic Frontier Foundation and Demand Progress.

“At Adobe, we believe customer private communications should receive full constitutional protections,” said Adobe spokesperson Lips. Other groups cite additional consequences of leaving the ECPA unamended. The Chamber of Commerce, for instance, worries about losing jobs to overseas competitors. “EU companies are pitching customers, telling them they should store stuff in the EU because they have stronger privacy protections than the United States,” says Jason Goldman, senior telecommunications policy counsel for the Chamber.


The amendment passed by the Senate Judiciary Committee in April. A vote before the full Senate has not yet been scheduled. On Wednesday, the House of Representatives Appropriations Committee unanimously passed a similar amendment giving emails the same protection as regular mail. The Representative Kevin Yoder (R-KS) said that the IRS, SEC, and other government agencies have stated Americans don’t have an expectation of privacy with their email, and he completely disagrees.

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About Amedeo Marchelli

Law Student. Love foreign languages. Searching the cure of mankind.

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