Jay Inslee: Washington's 1st Congressional District
Issues
Technology
Inslee Introduces Bipartisan Bill to Restore E-Mail Privacy
29 July 2005
* UPDATE: Favorable Court Decision on E-Mail Privacy. Click here to learn more.
U.S. Reps. Jay Inslee (D-WA) and Chris Cannon (R-UT) introduced the E-Mail Privacy Act of 2005 (H.R. 3503) to restore the privacy of consumers' E-mail communications, and ensure that any real-time interception of these communications abides by the same privacy standards applied to telephone conversations. The legislation responds to a June 2004 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. The ruling allows E-mails to be read if they are temporarily stored on the way to the intended recipient.
Said Inslee, "This bill modernizes privacy laws to allow consumers to regain confidence in the privacy of their electronic communications. Americans must have confidence that the law protects their rights to communicate privately by E-mail or other Internet communications."
Said Cannon, "This legislation brings the law up to date. As technology changes, we need to make sure that back doors into people's privacy, such as this court ruling, stay closed. With e-mail becoming one of the primary forms of communication in the United States, this is a serious concern that my bill addresses."
Problem
In June 2004, an appeals court in Boston ruled in the matter of 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 E-mails in temporary storage. Because the internet service provider's (ISP) snooping software copied e-mails while they were in temporary, millisecond storage incidental to transmission, the Court found no "intercept" of communications occurred. In ruling this way, 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 Inslee-Cannon legislation clarifies that "intercepts" subject to the Wire Tap Act include searches that are functionally real-time, in-transit acquisitions, regardless of whether they occur in temporary storage.
Click here to read the text of the E-Mail Privacy Act of 2005.