Trailblazing Email Privacy Bill Proposed in Texas
Mary Grinman – Edited by Natalie Kim
On May 27, 2013, the Texas State Senate and House both signed H.B. 2268. The legislation requires state law enforcement agents to secure a warrant before accessing emails and other “electronic customer data” in “electronic storage.” H.B. 2268 at 3–4. It also permits state courts to serve warrants on out-of-state service providers as long as they do “business in [Texas] under a contract . . . with a resident of [Texas], if any part of that contract . . . is to be performed in [Texas].” Id. at 9. With this requirement, the bill closes the loophole of the 1986 Electronic Communications Privacy Act (ECPA), which allows warrantless access to emails opened or older than 180 days. Unless Governor Rick Perry vetoes the bill by June 16, 2013, the bill will pass and go into effect on September 1.
Texas Rep. John Frullo originally authored the bill, with support from civil liberties organizations such as the Texas Electronic Privacy Coalition. Prior to the bill’s passage, the Senate amended it to allow “an authorized peace officer” to “require a provider . . . to disclose . . . information revealing the identity of customers . . . [and] information about a customer’s use of the applicable service[,] without giving subscriber or customer notice” as long as he obtained an administrative subpoena, a grand jury subpoena, a warrant, a court order, or the consent of the customer. See Senate Amendments Printing Analysis, at 5–6. The legislation is designed to “extend the jurisdiction of district judges by granting them privileges to issue data search warrants beyond the physical boundaries of the state for computer data searches only.” Senate Committee Report at 1.
Texas Legislature Online provides a summary of the history surrounding the bill. Ars Technica calls the bill “unprecedented,” and describes it as “the nation’s strongest email privacy bill.” RT states that the bill could be “a roadmap to updating the [federal] 1986 Electronic Communications Privacy Act (ECPA),” which only requires a warrant for recent and unopened emails. Pub. L. No. 99-508, 100 Stat. 1848 (Oct. 21, 1986),codified at 18 U.S.C. §§2510-22, 2701-11, 3121-26. However, Bloomberg BNA reminds its readers that the federal government will retain the authority to “access older emails without a warrant.” (more…)