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January 6, 2017

Email Privacy Could Be a Quick Win for Trump and Congress

 

One clear message President-elect Donald Trump has sent about his upcoming administration is that he is willing to challenge the Republican majority in Congress. In fact, just this week Trump made news by criticizing a rule change supported by congressional Republicans, after which Republicans quickly retracted their plans.

Mr. Trump’s emphasis on making deals may also indicate a bias toward including Democrats in the process—getting buy-in from both sides rather than relying on single-party support for his agenda.

If so, it could actually be a helpful opening toward new bipartisan coalitions on important legislation, especially since a clear lesson of the Obama years is that lasting policy change is only possible through legislation supported by members of both parties.

Well, I have a suggestion for the new president and Congress to get off to a positive, bipartisan start.

Last April, the House of Representatives passed the Email Privacy Act by an extremely rare 419-0 unanimous vote. Just to emphasize, every House Democrat and every House Republican supported the legislation. You don’t get any more bipartisan slam-dunk than that. But it never got to a Senate vote.

The legislation has nothing to do with fighting terrorism or otherwise protecting the nation, but simply corrects a glaring, 30-year-old mistake. In 1986, before the World Wide Web, when the Internet and electronic communication were in their infancy and we still used 5 ¼” floppy discs, Congress passed the Electronic Communications Privacy Act (ECPA), which unfortunately considered any electronic communication older than 180 days as “abandoned” and thus subject to search and seizure without a warrant.

You probably have emails older than 180 days still sitting in your in-box. You almost certainly have documents stored on your computer, on backups, in the cloud, etc., that are older than 180 days. But 30 years ago, Congress did not envision a world of such ubiquitous electronic communication and storage (although even then Congress shouldn’t have created any exceptions to the Fourth Amendment’s requirement of a warrant).

It’s clear to all that this mistake needs correcting, and that’s what the Email Privacy Act does. Its simple and obvious merit is why it passed the House with unanimous support just a few months ago.

The major promised agenda items like tax reform and health care overhaul are bigger lifts and will take months to get done. Congress could chalk up a quick, easy bipartisan victory for taxpayers if both the House and Senate determined to pass the Email Privacy Act on January 28, Data Privacy Day, and send it to President Trump for signature.


 

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