Byline: Steven Nelson

Congressional privacy advocates want to block government officials from seizing Americans’ emails and geolocation data without warrants – and they’re optimistic about their chances of scoring a win.

Authorities currently can take emails older than 180 days without a warrant, and police departments across the country increasingly are snatching cellphone location data in bulk with high-tech devices.

Many Americans “assume there’s a warrant standard for that information,” says Rep. Suzan DelBene, D-Wash., who reintroduced the Online Communications and Geolocation Protection Act with Reps. Ted Poe, R-Texas, and Zoe Lofgren, D-Calif., on Monday.

The bill would ban authorities from intercepting or obtaining individuals' geolocation information without warrants, with exceptions for national security and emergency situations. It also would eliminate the Electronic Communications Privacy Act of 1986’s 180-day limit on warrant protection for electronic communications – a cutoff privacy advocates view as alarmingly outdated.

“I was working in email in the early days in the late ‘80s and people weren’t using electronic communications at all in the way we take for granted today,” says DelBene, who previously worked at tech companies, including a decade at Microsoft.

“It’s about updating our laws so that digital information has the same protections as physical information,” she says. “If we can move this forward and get it on the floor, we have a great chance.”

Though the bill was unsuccessful in the last congressional session, sponsors believe they have laid the groundwork for victory by educating their peers. And the legislative history of similar proposals shows the measure's individual reforms have broad support.

A bill introduced in 2013 by Rep. Kevin Yoder, R-Kan., to eliminate the 180-day expiration of email warrant protection, for example, boasted 272 co-sponsors – more than half of the House's membership – though it died without a vote. A similar bill by Sens. Patrick Leahy, D-Vt., and Mike Lee, R-Utah, passed the Senate Judiciary Committee in 2013 but also died.

Requiring a warrant for geolocation data also has substantial backing. In addition to the broader bill pushed by DelBene, Lofgren and Poe, legislation specifically requiring a warrant for location data was reintroduced last month by Reps. Jason Chaffetz, R-Utah, John Conyers, D-Mich., and Peter Welch, D-Vt., with a Senate version from Sens. Ron Wyden, D-Ore., and Mark Kirk, R-Ill.

“I think the [congressional] leaders are the problem,” Lofgren says. 

"The potential of the government knowing where you are every moment is no longer an abstract concept," she says. "You’re carrying around a little geolocator whenever you go out with your cellphone."

The Silicon Valley congresswoman, a leading advocate on surveillance reform, also co-introduced with Chaffetz Tuesday a bill to allow companies to more accurately disclose the number of government requests they receive, and says she’s willing to join forces in pushing for greater location data and email privacy. Introduction of separate bills was not a strategic decision, she says.

DelBene and Lofgren say the expiration in June of sunsetting Patriot Act provisions will force a discussion on privacy and may provide an opening for their reforms to geolocation and email warrant requirements.

Lofgren says she doubts the House would approve a clean renewal of Patriot Act provisions that the Bush and Obama administrations secretly interpreted as allowing dragnet surveillance programs, pointing to majority House votes in favor of NSA reform measures last year. 

If the legislative route continues to be unsuccessful, however, Lofgren’s still optimistic location data reform will break in her favor. The Supreme Court recently ruled police generally need warrants to access cellphones and lower courts are beginning to take a similar approach to location data.

“The Supreme Court appears to be moving in this direction anyhow and I think over a period of years probably will provide a Fourth Amendment protection for location services," she says. "But that doesn’t mean Congress shouldn’t swiftly act.”