New Bill Requires Law Enforcement officials to obtain a search warrant for email and cell tracking.

On September 25, 2012 Representative Zoe Lofgren introduced a bill called the ECPA 2.0 Act of 2012 requiring that police must get warrants to access suspects’ emails and track their cellphones. The bill is supported by a number of large technology companies including Apple and Google. The U.S. Justice Department will likely oppose the bill.

Lofgren’s bill, if passed, amends the1986 Electronic Communications Privacy Act (“ECPA”). The ECPA is criticized for being outdated and difficult for judges to follow. The ECPA did not have cloud computing or social networking in mind when it was written and thus computer users currently have more privacy rights over their locally stored data.

The new act will make the ECPA easier for judges to follow and requires law enforcement officials to obtain search warrants to access private communications and the locations of mobile devices. Lofgren claims that the bill’s purpose is to prevent excessively broad government surveillance and to provide Americans greater measures of privacy. The bill’s introduction will not have an immediate effect, as there will be a continuing dialogue extending into 2013 when the bill will be reexamined.

Despite the support of many technology companies, the bill may have a difficult time passing. The U.S. Justice Department will likely oppose the adoption of the bill arguing that requiring warrants for emails and cell tracking would have an adverse effect on criminal investigations. Furthermore, similar privacy legislation has been unsuccessful in the past due to police opposition.

To successfully pass the bill, Lofgren will likely have to show that emails and cell phone tracking is protected under the Fourth amendment. The Fourth Amendment only protects individuals when they have a legitimate expectation of privacy. A party proves that he has a legitimate expectation of privacy by showing he has a subjective expectation of privacy and by showing that it is an expectation society is prepared to recognize as reasonable. Showing that individuals have subjective expectations of privacy in their emails and cell phone tracking will likely not be an issue. Lofgren will most likely be challenged by proving that society is prepared to recognize citizens’ expectation of privacy in their emails and cellphone tracking as reasonable by showing that an individual’s expectations of privacy in these communications outweigh the adverse effects such legislation would have on criminal investigations.