Texas has become the first state in the nation to require law enforcement to obtain a warrant to read people’s email, and privacy advocates are hoping the move will help quicken the passage of a similar proposal in Congress. While Texas is the first, it is unlikely to be the last to pass such a law. The California Legislature is considering a bill barring warrantless email surveillance and snooping on messages and profile information stored on social networking sites like Facebook and Twitter.
Privacy advocates are hoping that states passing such laws will pressure Congress to amend the Electronic Communications Privacy Act (ECPA), which requires a warrant only for unopened email. Opened messages, as well as email left unopened for more than 180 days, do not require federal law enforcement to get a warrant. ECPA, enacted in 1986, gives states the right to pass privacy laws more stringent than federal statutes. However, state laws only apply to local law enforcement and cannot be used to force federal authorities to obtain warrants or to impede their investigations.
These laws and bills apply only to criminal cases within the United States. They have no impact on cases involving national security, such as recent revelations of the National Security Agency’s wide-ranging surveillance of electronic communications.