The Electronic Communications Privacy Act: Does the Act Let the Government Snoop Through Your Emails and Will It Continue?

The Securities and Exchange Commission (“SEC”) is an enforcement powerhouse that has historically relied on the 1986 Electronic Communications Privacy Act (“ECPA”) to collect electronic communications directly from Internet Service Providers (“ISPs”) with a subpoena. The ECPA shields recent or unopened electronic communications from government eyes, but treats all others as abandoned and thus subject to warrantless government search and seizure. In 2015, Congress introduced the Email Privacy Act to align the ECPA with current technologies and their pervasive role in society by requiring a warrant before the government may access any emails from ISPs. The SEC seeks a civil agency exemption. This Recent Development argues that the SEC’s proposed exemption must fail because the bill’s warrant requirement will respect the Fourth Amendment’s preference for bright-line rules without inhibiting investigations.