HR 699, the Email Privacy Act, which would make significant changes to update the Stored Communications Act, was presented at a listening session hosted by the House Judiciary Committee on June 25. The act is sponsored by over half of the House of Representatives, which would appear to indicate great support for it. The purpose of the act is to amend the SCA, which was enacted in 1986 to protect electronically stored information kept not by users on their personal devices but rather by third parties, such as Internet service providers.

In my last column, “The USA Freedom Act and Fourth Amendment Jurisprudence,” I looked at Riley v. California, 189 L.Ed. 2d 430 (2014), and the USA Freedom Act to question whether the courts were in a better position than Congress to apply the second prong of Justice John Marshall Harlan II's famous two-pronged test from Katz v. United States, 389 U.S. 347 (1967), namely, determining what expectation of privacy society deems “reasonable” when deciding whether a thing or location was protected by the Fourth Amendment. In that column, I was critical of the court's application of the two-pronged test and suggested that, since the courts were anti-majoritarian while Congress was designed to provide a voice to the people, the latter would be in a better position to determine what a “reasonable expectation of privacy” was. Looking at the act, however, reveals that Congress, as well, has its issues when determining what things and places should be accorded privacy protections. In this month's column, I look at the act and a recent case, Anzaldua v. Northeast Ambulance & Fire Protection District, No. 14-1850 (8th Cir, July 10, 2015) to discuss the issue.

HR 699 and the SCA

All of the changes to the SCA proposed by HR 699 are common sense and should have been made a long time ago. The issue with HR 699 is what it fails to cover, not what it does cover.

HR 699 proposes to amend 18 U.S.C. Sections 2702(a)(3) and 2703 to require that law enforcement obtain a search warrant, supported by probable cause, to obtain from an electronic communication service or remote computing service the contents of “a wire or electronic communication that is in electronic storage,” as well as records pertaining to the communication, the account and the user. One change the act would have would be to elevate the level of proof needed by the government to obtain a court order for records from “reasonable grounds” to probable cause. The key change here, however, is that the present incarnation of the SCA, not changed since it was enacted in 1986, requires a showing of probable cause to obtain only such communications that have been so stored for 180 days or less. To obtain stored communications older than 180 days, the government now need show only those same “reasonable grounds.” In the almost 30 years since enactment of the SCA, state courts have filled some of the void by requiring state law enforcement to obtain search warrants regardless of how long the data has been in storage, but federal law has remained untouched.