Under the 1986 Electronic Communications Privacy Act (ECPA),1 the government has relatively easy access to a vast amount of data stored online, and account holders have little recourse. For years, privacy advocates have urged that the statute be amended, since the law predates the widespread use of email and the cloud storage of data, among other innovations. In response, Senator Patrick Leahy (D-VT), chair of the Senate Judiciary Committee, has proposed amendments to ECPA, that may result in some additional protections being added in 2013.
Under the current version of ECPA, the government can obtain access to email stored online for more than 180 days by merely presenting a subpoena to the Email Service Provider for the contents of the user’s email account.2 A court’s review and approval are not required. Subpoenas may be challenged in court, but challenges to subpoenas, particularly grand jury subpoenas, are rarely successful.
