Texas Email Privacy Bill Could Prod States, Feds

May 29, 2013 – In The News
Law360

Scott Vernick was quoted in the Law360 article "Texas Email Privacy Bill Could Prod States, Feds." While the full text can be found in the May 29, 2013, issue of Law360, a synopsis is noted below.

After unanimously passing both the Texas House and Senate, H.B. 2268 - a bill that would raise the bar for government access to electronic communications - was sent to Gov. Rick Perry. This potentially precedent-setting bill suggests warrants be required for all emails held by service providers and could help propel long-running efforts to amend outdated federal and state electronic privacy protections.

Perry will have until June 16 to sign or veto the bill. If he does neither, the bill will pass automatically and take effect September 1. Should the bill pass, it will establish the strongest email privacy protections in the United States.

The bill potentially provides open doors for other jurisdictions anxious to modernize existing privacy laws such as the Electronic Communications Privacy Act, which allows law enforcement to access emails that are open or more than 180 days old using only a subpoena, rather than a probable cause warrant, according to attorneys.

“The approach being taken by the new legislation seems intuitively correct from a constitutional standpoint, given that the point of the Fourth Amendment was to prevent unwarranted government intrusions,” according to Scott Vernick. “If you have a letter in your hand, you have a reasonable expectation of privacy that doesn’t change based on the age of the letter or whether it’s opened or not, and the same should be true for electronic communications.”

While the Texas bill would prohibit state law enforcement officials from obtaining electronic communications stored in other states without a warrant, it does not apply to authorities in other jurisdictions.