Grassley Weighing Action on E-Mail Privacy, Aide Says

Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...

By Alexei Alexis

Sept. 2 — Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) plans to take a look at updating a nearly 30-year-old electronic privacy statute this fall, a committee aide told Bloomberg BNA Sept. 2.

Grassley is interested in reassessing the Electronic Communications Privacy Act of 1986 in light of concerns about e-mail privacy, but a decision hasn't yet been reached on specific legislative text, nor on whether to mark up a bill, Grassley spokesman Taylor Foy said.

“The chairman is interested in taking up ECPA reform, but how it plays out remains to be determined,” Foy said. “Things are still up in the air.”

Pending Bill

A spokesman for Sen. Mike Lee (R-Utah) told Bloomberg BNA Sept. 2 that Lee's ECPA overhaul bill (S. 356) would see committee action. Foy said that announcement was premature.

Lee's bill has been awaiting committee action since it was introduced in February.

The legislation, which is backed by leading technology companies, including Facebook Inc. and Google Inc., is aimed at protecting Americans’ e-mail and other data held by cloud computing providers by requiring law enforcement agencies to obtain a search warrant based on probable cause before accessing such information. It would eliminate the “180-day rule,” which some government agencies invoke to claim warrantless access to older e-mails, according to a statement on the legislation.

“There is pretty widespread consensus in the business community that ECPA is outdated and needs to be modernized,” Andrew P. Howell, a partner at the Monument Policy Group in Washington, told Bloomberg BNA. “It’s an uphill climb to get ECPA moving forward this year, but given the need to modernize this legislation, a potential markup of the bill is a hopeful sign.”

Law Enforcement Concerns

Lee's bill has prompted concerns from the Federal Bureau of Investigation Agents Association.

“FBI agents and other law enforcement officials must have reasonable access to electronic data under supervision from the courts and cooperation from service providers in order to protect the public from criminal and terrorist threats,” Reynaldo Tariche, the group's president, said in statement provided to Bloomberg BNA. “The FBI Agents Association looks forward to continuing to work with legislators as they work through these complex issues in order to find workable solutions that strike the appropriate balance between privacy and protecting the American public.”

The association told lawmakers in an Aug. 4 letter that requiring a probable cause warrant for access to all stored electronic information could delay investigations. The group said Lee's bill should include explicit exceptions for emergencies and investigations of crimes such as child pornography.

‘Very Strong Prospects.'

Gregory T. Nojeim, senior counsel for the Center for Democracy & Technology, a Washington technology policy organization, said the bill has “very strong prospects,” given that it was approved by the panel in a previous Congress. However, the Securities and Exchange Commission is a potential obstacle, he said.

“The civil agency carve-out from the warrant requirement that the SEC is seeking continues to be an issue, so there could be some fireworks around that,” Nojeim told Bloomberg BNA.

The bill has about two dozen co-sponsors, including Senate Judiciary Committee ranking member Patrick J. Leahy (D-Vt.). A version (H.R. 699) pending before the House Judiciary Committee has close to 300 co-sponsors.

A House Judiciary aide told Bloomberg BNA that the issue remains a priority for the panel's chairman, Rep. Robert W. Goodlatte (R-Va.), and he is hopeful that legislation will move this fall.

To contact the reporter on this story: Alexei Alexis in Washington at aalexis

To contact the editor responsible for this story: Heather Rothman at

The FBI Agents Association letter is available at