The email privacy hole Congress won’t fix

The email privacy hole Congress won’t fix

Of all the good tech-policy ideas dying a slow death in Congress, none has sunk to a deeper level of “Groundhog Day” futility than the effort to reform the Electronic Communications Privacy Act of 1986.

That law tech-policy types call “ECPA” has long since become a four-letter word. Its original sin was leaning on an obsolete understanding of email to grant warrant-free access to messages stored online, but its major failing is now irrelevance: webmail providers demand a warrant anyway.

And yet Congress can’t fix a law that has decayed from dangerousness to uselessness. This year is still young and many Republicans now profess themselves uneasy over the Federal Bureau of Investigation’s reach — but history suggests 2018 will end like the years before it, with ECPA intact.

How we got here

ECPA’s error should have been obvious to people versed in bulletin-board systems and email protocols 32 years ago: It imposes a 180-day limit on how long messages stay parked on “an electronic communications system.”

Up to that expiration date, the government needs a warrant from a judge based on probable cause to compel a communications provider to turn over your mail. Afterwards,  a mere subpoena suffices.

The advent of webmail services in which your messages never left the cloud — beginning less than 10 years after ECPA’s passage with Hotmail — only made that line look more absurd.

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