This summer, Congress is expected to consider S.607, legislation by Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) that would amend the 27-year-old Electronic Communications Privacy Act (ECPA) to require government agencies to obtain a warrant before compelling service providers to disclose emails and documents stored in the cloud on behalf of subscribers. The bill would be a huge win for privacy at a time when it is suffering huge losses at the hands of the NSA.
However, some regulatory agencies are seeking an exception that would partially gut the bill. They complain that since they have no warrant authority, S.607 would limit their ability to conduct investigations. In letter dated April 24, 2013, the SEC argued that regulatory agencies should have the power to obtain court orders requiring service providers to disclose the content of communications stored on behalf of third parties. It would empower the IRS, EPA, FCC, FEC, CFPB and every other regulatory agency to obtain communications content without meeting the probable cause standard the bill would establish, making governmental authority in civil investigations exceed its authority in criminal investigations. The FBI would need a warrant if it wanted to read your email for a murder investigation, but the IRS wouldn’t need a warrant to read your email in a civil tax investigation to assess whether, for example, you took a deduction that weren’t entitled to take. This should not be.