For more than 30 years, a little-known loophole in federal law has allowed the government to read Americans’ emails without a warrant, as long as the messages are more than six months old.
Democrats and Republicans in the U.S. House of Representatives, who rarely agree on anything, have unified behind a bill to close that loophole. It sailed through the House unanimously earlier this month by voice vote.
Yet the bill’s chances of becoming law are bleak.
It faces daunting roadblocks in the Senate, where changes sought by Jeff Sessions, who until recently was a U.S. senator and is now attorney general, and Majority Whip John Cornyn of Texas have killed the bill in the past.
Donald Trump’s ascendency as a “law and order” president — and his appointment of Sessions, a former prosecutor, as his top law enforcement officer – has eroded enthusiasm for the bill among Republican senators who aren’t eager to cross the new administration.
The Department of Justice did not respond to multiple phone calls and emails requesting comment from Sessions. The White House said it would not comment on a bill before it passed the Senate.
The privacy issue pits the ruling party’s civil libertarian wing against its law-and-order wing. And the libertarians might not have the pull needed – not even with GOP senators who previously co-sponsored the bill – to get it across the Senate’s finish line.
The legislation’s dire prospects infuriate privacy advocates. They say it is far past time for Congress to close the loophole.
“This is an idea whose time has come,” said Jason Pye, director of legislative affairs for FreedomWorks, a libertarian-leaning conservative advocacy group that supports the bill. “It’s just one of those situations now for senators to let it go to the floor, let it go though unabated.”
Ambiguous language in a 1986 law created the loophole by extending Fourth Amendment protections against unreasonable search and seizure only to electronic communications sent or received fewer than 180 days earlier.
That law enabled the government to treat old emails and other electronic correspondence as “abandoned information.” Because of that status, the thinking went, there was no expectation of privacy, meaning the messages could be searched and seized without a warrant.
The loophole applies to texts, photos and other digital documents, not just emails. Deleted files are fair game, as long as copies exist on a third-party server. Opened emails also could lack protection.
Privacy advocates and tech firms have lobbied for years to fix the 1986 law. The Email Privacy Act, sponsored by Republican Rep. Kevin Yoder of Kansas, would require government agencies to obtain search warrants based on probable cause to look at the content of electronic communications more than six months old. The bill also would require warrants for opened emails.
Last year, the bill passed the House by 419-0. This year, on Feb. 6, it passed the House again by voice vote using a fast-track parliamentary maneuver usually reserved for the naming of post offices and other noncontroversial resolutions.
The legislation is endorsed by a wide array of groups across the political spectrum, from Heritage Action on the right to the American Civil Liberties Union on the left.
“I’ve joked this is the bill that can bring America together,” Yoder said.
Yoder points out that the world has changed since 1986, when only about 10 million people used email and service providers offered limited digital storage space.
In 2017, few Americans would think twice about leaving emails for more than 180 days or putting documents in digital storage, whether in Dropbox or iCloud, he said. They would assume a reasonable expectation of privacy.
“Ask any five Americans in the street,” Yoder said. “Do you think the government has the right to read your emails without probable cause anytime they want to? And nobody agrees with that.”
Law enforcement agencies have pushed back. They argue that Yoder’s bill would make it harder for investigators to obtain “digital evidence,” which is increasingly important in criminal cases.
In the physical world, as opposed to the digital, the general rule is that authorities have to have a warrant for any search or seizure.
There are exceptions. “If somebody’s life is in danger, there’s emergency aid exemptions,” said Steven Cook, president of the National Association of Assistant U.S. Attorneys. The association and other law enforcement groups want to add an emergency exemption to Yoder’s bill.
Such exemptions typically apply to law enforcement officers who enter a private residence without a warrant to rescue someone from a fire or because they hear screams for help.
In the digital world, law enforcement can’t just break into a third-party server provider to get customers’ emails, even in an emergency.
The 1986 law lets them seek electronic communications without a warrant, but they need cooperation from third-party service providers like Google and Facebook, who have discretion over whether to provide a customer’s information to law enforcement in the absence of due process.
The status quo is that tech companies don’t comply unless they have a good-faith belief that someone could die or be seriously harmed. So far, courts have generally agreed with this approach, and federal agencies testified before Congress in recent years that it is policy not to take advantage of the loophole. But tech companies and privacy advocates want that policy to be made law, especially now that the Trump administration is in charge.
When Yoder’s bill passed the House earlier this month, eight law enforcement organizations representing federal, state and local prosecutors, police chiefs, directors of criminal investigative agencies, and rank and file officers, signed a letter opposing it. They sent it to Cornyn, Senate Majority Leader Mitch McConnell, R-Ky., and other influential lawmakers.
The law enforcement community found powerful allies in the Senate when the bill came up for consideration in the Judiciary Committee last June: Sessions and Cornyn.
Sessions, a former federal prosecutor, wanted a change in Yoder’s plan that would require service providers to turn over emails or other customer records to a government agency without a warrant in an emergency. In Sessions’ proposal, investigators simply would have to certify “under penalty of perjury” that they needed the information to prevent “death or serious injury.”
Cornyn was an original co-sponsor of the bill. He said he didn’t object to closing the loophole to protect 6-month-old email content from warrantless search and seizure. But he also wanted to expand the 1986 law to give the Federal Bureau of Investigation access to Americans’ browser histories and other electronic metadata, such as email logs, without a warrant.
That change, identified as a top priority by FBI Director James Comey during the administration of President Barack Obama, would let the FBI obtain such data in counterterrorism investigations using an administrative subpoena called a national security letter, which typically is accompanied by a gag order.
The coalition of tech companies and civil liberties groups that had championed the bill balked at those changes, which they said would gut digital privacy protections rather than expand them, as originally intended.
So the bill’s sponsor in the Senate, Utah Republican Mike Lee, pulled the legislation from consideration in the committee.
Lee’s office says he will introduce a version of the Email Privacy Act in the Senate again soon. Support so far appears to be tepid, however.
Two of the nine Republicans who co-sponsored the bill last year are no longer in the Senate. Five of the remaining GOP co-sponsors — Sens. Cornyn and Ted Cruz of Texas, Jerry Moran of Kansas, Dean Heller of Nevada and Steve Daines of Montana — would not comment on whether they intend to co-sponsor it again this year. Kansas Sen. Pat Roberts’ office said he was still deciding.
For now, Sen. Cory Gardner of Colorado is the only Republican, other than Lee, who told McClatchy he’s committed to supporting the bill again this year.
A spokeswoman for Cornyn declined to comment last week on whether he would try to attach his FBI amendment to the bill this year, a move the bill’s proponents say would kill it again.
Law enforcement groups said they were confident that Cornyn — and Sessions in particular — would support them.
“We hope (Sessions) uses his position to be more open-minded on issues such as this one,” said Patrick O’Carroll, executive director of Federal Law Enforcement Officers’ Association. “We support him aggressively. We think he will support us.”