Earlier this week Texas' legislature unanimously passed and sent a bill to Gov. Rick Perry's desk that could enact the strongest privacy protections for emails in the country.
If signed by June 16 (or automatically passed without a veto), HB 2268 would become effective September 2013, making the law more strict than the federal Electronic Communications Privacy Act (ECPA), which has been criticized lately by privacy advocates for being too outdated given the current state of technology.
HB 2268 relates to search warrants issued for customer data, communications and other information electronically held by "providers of electronic communication services and remote computing services." If it becomes law, it would require peace officers to obtain a warrant for customer data -- even that which is older than 180 days -- to be disclosed by an electronic communications service or provider.
The Texas Electronic Privacy Coalition, which voiced support for the legislation, wrote on its website after it passed Tuesday that "Texas may be the first state in the nation to take this step, and we’re way ahead of Congress."
Ars Technica, which called the bill "unprecedented," reported privacy advocates hoping this move by Texas might spur Congress to take a stab at updating EPAC, which the Department of Justice said it would support updates to in March:
“Privacy is a special thing in Texas—it goes to the core values of Texas,” said Chris Soghoian, a senior policy analyst at the American Civil Liberties Union.
“It's always good to see states passing pro-privacy legislation because it sends a signal to Congress. It sends a signal to conservative members who might not yet be on board that this is something being supported in their own states and it helps the courts to see that this is a safe space to venture into. When cities and states start protecting e-mail, then judges may feel like there is a reasonable expectation of privacy.”
Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation (EFF), agreed.
“It is the first state legislature I'm aware of to change the law this way,” he told Ars. “Other states are currently considering similar legislation, including California—where EFF sponsored SB 467 recently passed the Senate 33-1 and is now being considered in the Assembly."
"It's significant proof that privacy reform is not only needed but also politically feasible with broad bipartisan support," Fakhoury said. "Hopefully that will impact federal ECPA reform efforts by getting people on both of sides of the political aisle to work together to make meaningful electronic privacy reform a reality. The more states that pass similar legislation, the more pressure it will put on Congress to keep up with the changing legal landscape.”
Texas passing the bill comes as federal agencies have been pushing harder for the ability to obtain -- or continue to obtain -- emails and other electronic communications without a warrant for their investigations.
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