Now this might not have made waves when the ECPA was initially passed in 1986, but some recent high-profile email snooping has brought the practice to light.
While ECPA was designed to balance people's privacy rights with the needs of law enforcement agencies investigating crimes, privacy rights groups have accused the Department of Justice of taking an overly broad interpretation to ECPA, based on the agency's reading that old emails aren't subject to protection under the Stored Communication Act.
After the Ninth Circuit Court of Appeals, which covers the western United States -- including California -- ruled that the Stored Communications Act did apply to emails, the Justice Department advised investigators that when accessing emails more than 180 days old without using a warrant, they should do so outside the court's jurisdiction.When the US Justice department starts advising law enforcement to ignore the law (as long as they don't get caught in the Ninth Circuit), that's ringing the privacy alarm bells and asking for added legislative and judicial oversight.
One reaction is the Leahy-Lee ECPA Amendments Act, which was approved by the Senate Judiciary Committee last week. The bill would require law enforcement to obtain warrants in order to access stored online communications and content (including documents, pictures, and other information stored in the cloud).
"I have long believed that our government should obtain a search warrant -- issued by a court -- before gaining access to private communications," Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said...I'm hopeful for speedy passage through Congress, and a Presidential signature. But Congress has had trouble getting online and privacy laws right, and one has to wonder whether this President would be willing to reign in his own Dept. of Justice. Given this administration's track record of ignoring laws and court rulings it doesn't like, I'm not so positive about the eventual outcome.
Source - Email Without A Warrant? Senators Not Sold, Information Week