On Tuesday, a bill was sent to the the desk of Texas Governor Rick Perry from the State Legislation, detailing new privacy laws for some not-so-new technology: Email. The new bill (HB 2268) requires state law enforcement to obtain a search warrant before they can look into someone’s email, no matter how old the email is. Of course, as state-level legislation, it can’t require federal investigators to do the same – but the bill, unprecedented in its privacy extensions, may pave the way for other states to make similar legislation, and eventually, for the federal government as well.
What exactly does the bill change?
Most of the current federal law for online privacy comes from the Electronic Communications Privacy Act of 1986. The ECPA sought to extend the protections against wiretapping phones to the (at the time) newly developing computerized forms of communication. The federal bill required a warrant for any electronic communications that were in transit. If the communication was in storage, it still required a warrant – unless it had been opened already, or if it had been in storage for at least 180 days.
But technology has changed in the past 30 years. For a decade or two after the ECPA was passed, Email was primarily sent from one computer to another computer, and stored there on the email client. It was rare for an email to remain in your personal “e-mail” folder and stay there for 180 days.
But these days, most email is done with services like Gmail or Yahoo — services that store your emails for you. With the vastly increased storage space on some distant server, it’s more likely for the user to store their emails indefinitely, which opens up privacy holes under the federal law. And of course, any opened email is free-range, regardless of how long you’ve had it stored.
But now we have 100% privacy?
Not exactly. The new Texas legislation does plug those holes: emails require a warrant, no matter where they’re saved or for how long they’ve been saved. But it also only affects Texas Law Enforcement. And of course all of this hinges on the Governor not vetoing the bill. Rick Perry has until June 16th to veto it, and if he doesn’t it will go into effect in September, even if he doesn’t actually sign it. But the bill passed the Texas Legislature in both houses without a single nay vote, so it seems unlikely that it will be vetoed.
But this bill means much more than just the privacy it provides for perhaps more than just Texas residents. It’s a prime example of the process of Federalism: new policy begins at the state level, is tested, and if found successful is implemented into federal policy. This bill takes farther steps toward online privacy than any other state has so far, and it may be the first step toward a strengthening of the ECPA at some point in the near future. Texas isn’t alone in privacy pursuits, either. Just last week Maine passed a bill to require a warrant for Cellphone tracking.
Texas is poised to progress past the pack and move into the lead for privacy reform. And if we’re lucky, soon the rest of the pack will rush to catch up with us.