Congress Should Fulfill Chatrie by Passing the Email Privacy Act

The U.S. Supreme Court’s landmark decision in Chatrie v. United States should give Congress fresh impetus to pass the bipartisan Email Privacy Act.

This bill updates the Electronic Communications Privacy Act (ECPA). When Congress passed it in 1986, the ECPA was a forward-looking effort to bring the new digital world into the constitutional order.

In the Reagan era, storage was expensive, and users typically downloaded emails to their computers and deleted them from providers’ servers. Congress therefore assumed that emails left on a server for more than 180 days had been abandoned. ECPA allows the government to obtain those older communications with a subpoena or lesser court order rather than the probable-cause warrant required by the Fourth Amendment.

That assumption has been rendered obsolete by technology. Americans now routinely keep emails for years, storing family correspondence, medical information, financial records, political discussions, photographs, and other intimate details in the cloud.

The bipartisan Email Privacy Act, introduced by Reps. Warren Davidson (R-OH) and Suzan DelBene (D-WA) and Sens. Mike Lee (R-UT) and Ron Wyden (D-OR), would update the ECPA for the 21st century. The Email Privacy Act would require the government to obtain a warrant before accessing the contents of emails and other stored electronic communications, regardless of their age. It would also permit providers to notify customers when the government seeks their information unless a court orders otherwise.

The constitutional case for this reform is strengthened by Chatrie. On June 29, the U.S. Supreme Court held that the government conducts a Fourth Amendment search when it obtains a person’s location history from Google – even though the information covers only a limited period and is stored by a third-party technology company.

The Court thus narrowed the “third-party doctrine,” under which information disclosed to a business was often deemed stripped of Fourth Amendment protection. The Court recognized that using modern digital services does not amount to inviting the government into one’s private life. Indeed, the majority specifically compared (p. 3) location records to emails, electronic photographs, documents, and calendars – materials users reasonably understand to remain their own even when stored on a company’s servers.

That reasoning undermines ECPA’s 180-day distinction. Constitutional protection should turn on the private nature of the information, not an obsolete technological assumption that an old email has been abandoned. An intimate message does not become less private on its 181st day.

Courts will undoubtedly apply Chatrie to emails and other cloud records. But Americans should not have to vindicate their privacy rights inbox by inbox, account by account, and lawsuit by lawsuit. Litigation is slow, expensive, and dependent on the idiosyncrasies of individual cases.

​Congress can establish a clear national rule now: Private communications remain private, wherever they are stored and however old they become. By passing the Email Privacy Act, Congress can reinforce Chatrie, give law enforcement a uniform standard, and ensure that Fourth Amendment protections do not expire after six months.

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