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Electronic Communications in a Digital Age

Email privacy and other stored electronic data at the heart of new legislation and court determinations

On Feb. 6, 2017, the House of Representatives passed the Email Privacy Act (H.R. 387). This bill is a long overdue update of the Electronic Communications Privacy Act (ECPA), a bill passed in 1986 that governs the treatment of electronic communications. The Email Privacy Act establishes that law enforcement officers must obtain a warrant to access the content of most electronic communications and cloud-stored content from third-party providers and eliminates the arbitrary rule that would allow the government to obtain emails older than 180 days with a subpoena. The bill passed overwhelmingly in the last Congress 419-0.

While even more recently, the U.S. Supreme Court in a 5-4 decision determined that police must usually get a warrant to access historical “cell site location information” (CSLI). CSLI is geographic data held by a cellphone service provider about the location(s) of a device, such as a phone, and where it has connected to its network. It can essentially provide police with a roadmap of where one has been. In Carpenter v. United States, there was 127 days’ worth of Timothy Carpenter’s historical CSLI data obtained without a warrant because it was held by the “third party provider.” The Court ruled that a warrant was required for such long-term cell tracking data collection and information.

What we are seeing today is a strengthening of the Fourth Amendment as it relates to individual privacy and the expectation of privacy, not only in stored electronic communications, but also data collected by a “third party provider,” such as cell towers and cellphone providers. It is important that anyone accused of a crime does not voluntarily allow police to search their phone, device’s history, or location data without a warrant. Information relative to this discussion is also contained in my new book, Defending Sexual Offenses- A Non-Lawyer’s Guide to Understanding the Criminal Process in Pennsylvania.