On February 6, 2017, the House of Representatives suspended its rules and passed by voice vote H.R 387, the Email Privacy Act. As we previously reported, the Email Privacy Act amends the Electronic Communications Privacy Act (“ECPA”) of 1986. In particular, the legislation would require government entities to obtain a warrant, based on probable cause, before accessing the content of any emails or electronic communications stored with third-party service providers, regardless of how long the communications have been held in electronic storage by such providers.

Similar legislation unanimously passed the House in the last Congress, but died in the Senate due to concerns over amendments to the bill. Even the legislation’s Senate sponsors – Sen. Leahy (D-VT) and Mike Lee (R-UT) – eventually withdrew the bill from consideration due to concerns that the amendments would make electronic communications even less private than they are now.

The Email Privacy Act now moves to the Senate, where it will be considered by the Senate Judiciary Committee, which is chaired by Sen. Chuck Grassley (R-IA). However, action on the legislation may be a lower priority for the Committee, and the Senate in general, because they are currently concentrating on nominations for agencies and the Supreme Court.