Jay Inslee: Washington's 1st Congressional District

Issues

Protecting Your Privacy

Inslee Introduces Bill to Restore E-mail Privacy

22 July 2004

U.S. Reps. Jay Inslee (D-WA), Roscoe Bartlett (R-MD), Jeff Flake (R-AZ) and William Delahunt (D-MA) today introduced bipartisan legislation to restore the privacy of consumers’ E-mail communications, and ensure that any interception of these communications abides by the same privacy standards applied to telephone conversations. The lawmakers introduced the E-mail Privacy Act of 2004 (H.R. 4956) in response to a recent decision by the U.S. Court of Appeals for the First Circuit (U.S. v. Councilman), which ruled that the federal wiretap law does not apply to interception of E-mail in real-time transmission.

Said Inslee, “The American people are no longer confident that the law protects their right to communicate privately via E-mail or other Internet communications, and Congress will act to modernize America’s privacy laws if the courts fail to maintain a strong privacy standard.”

Said Flake, "People who communicate through E-mail deserve and expect the same privacy rights as those who use the telephone. This bill reaffirms that expectation."

[ View a copy of the E-mail Privacy Act of 2004 ]

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Newspaper articles about Inslee's E-mail Privacy Act of 2004
“Making Sure E-Mail Stays a Two-Way Street.” Washington Post 28 July 2004 “E-mail Privacy is All the Rage.” Technology Review 28 July 2004 “U.S. E-mail Privacy Bill Introduced.” InfoWorld 23 July 2004 “E-mail Privacy Debate Heads to Congress.” eWEEK.com 28 July 2004 “Lawmakers Look to Curb E-mail Eavesdropping.” CNET 26 July 2004

Problem:

An appeals court in Boston recently ruled in U.S. v. Councilman that the federal wiretap law, which makes it a crime to intercept real-time communications, does not apply to interception of certain E-mails. In ruling this way, internet service providers (ISPs) can now read consumers’ E-mails more freely, and law enforcement can abide by fewer privacy protections in order to intercept such communications.

The anti-wiretapping laws divide communications into two categories: those that can be accessed while in storage, such as an E-mail stored for the long-term, and those that can only be intercepted in real-time, such as a phone call. Real-time interceptions require a wiretap order, with several privacy requirements, whereas accessing stored communications requires only a warrant or a subpoena.

It is clear that the Congressional intent behind the 1986 Electronic Communications Privacy Act was to require the more stringent privacy protections of the Title III Wiretap Law for electronic communications intercepted in real-time transmission. Mainstream ISPs and the Department of Justice have also maintained the same distinction, requiring a wiretap order for these real-time interceptions. The Boston appeals court sets a new precedent, however, that allows ISPs and law enforcement to have easier access to electronic communications.

Solution:

The E-mail Privacy Act of 2004 seeks to address the precedent set by the recent decision of the US Court of Appeals for the 1st Circuit in U.S. v. Bradford C. Councilman (June 29, 2004). The legislation will:

ensure that no private service provider is allowed to access E-mails beyond what is necessary to render its service; and
ensure that electronic communications intercepted in real-time transmission be accorded the privacy protections of the Title III Wiretap Law.

[ see "Technology" section ]