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Senate clears bill to block warrantless email searches

But CISPA still trumps it

Application security programs and practises

The Senate Judiciary Committee has cleared the way for an amendment to the Electronic Communications Privacy Act (ECPA) that will require the police to get a warrant before rummaging through your emails.

Under the existing terms of the 1986 EPCA legislation, police investigators only need a subpoena, which can be issued without judicial oversight, to access emails that have been read or are older than 180 days.

Under the proposed amendment, which is now cleared for a full Senate vote, police will have to argue in court for a search warrant before searching through stored data, and the target of an investigation must be informed within 10 days of a warrant being issued. The Comptroller General will also have to review the process on a regular basis.

There are, of course, some exceptions, with investigations under the Omnibus Crime Control and Safe Streets Act of 1968 (commonly known as the "Wiretap Act") and the Foreign Intelligence Surveillance Act of 1978 getting a pass from the amendment.

"When I led the effort to write ECPA 27 years ago, email was a novelty," said co-sponsor Senator Patrick Leahy (D-VT) in a statement. "Three decades later, we must update this law, so that the law protects our privacy rights and keeps pace with innovation and the challenging mission of law enforcement. I look forward to the Senate now considering this important legislation."

The coming ECPA amendment may also include the protection of GPS data in a similar manner, according to discussions within the Senate Judiciary Committee. A further hearing will be held on the matter if senators deem it necessary.

Now that the committee has given the amendment the nod, it can go to a straight floor vote in the Senate, and it's expected to pass. Although Congress is mired in deadlock, some things are getting done, and the bill has supporters on both sides of the political spectrum.

"Reforming ECPA to protect legitimate privacy rights is not a partisan issue," said co-sponsor Senator Mike Lee (R-UT). "I'm pleased to be working closely with Chairman Leahy to help ensure that all Americans can be confident that the government may not access their email or other electronic communications without a warrant."

There is, however, a fly in the ointment: CISPA. Under the terms of the Cyber Intelligence Sharing and Protection Act, which was passed (again) by the House of Representatives last week, all and any data could be up for grabs, depending on how much your service provider wants to help out government investigators.

Proponents of CISPA say that the government will only use CISPA for "cybersecurity purposes" and any sharing by companies is on a voluntary basis only. Opponents claim the legislation drives a railroad straight through existing privacy rules and companies that participate have no oversight and full legal indemnity, which could lead to abuse.

So far over 840,000 people have signed a petition against the legislation and over 400 websites went dark for a day in protest. Even the veto-shy White House has been rattling its sabre over the issue. But while the bill enjoys strong support in the lower house, the Senate may well have other ideas, if recent reports are to be believed.

On Thursday a representative of the US Senate Committee on Commerce, Science and Transportation told US News & World Report that CISPA isn't going anywhere in the Senate, which wants to draw up its own legislation on the matter over the next few months.

"I think it's dead for now," says Michelle Richardson, legislative counsel with the ACLU. "CISPA is too controversial, it's too expansive, it's just not the same sort of program contemplated by the Senate last year. We're pleased to hear the Senate will probably pick up where it left off last year." ®

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