Texas to pass landmark email privacy law

Texas is on the verge of passing legislation that patches a hole in federal privacy law. Under the 1986 Electronic Communications Privacy Act, no warrant is needed to spy on email once it has been opened, or if it is unopened on a server for more than six months. The Feds have fought efforts to reform this antiquated law, which the DHS and its affiliated snoops rely upon to conduct mass-scale, warrantless surveillance. The Texas law is somewhat symbolic (since it won't stop Fed snooping), but it's still an important step toward establishing a better norm in privacy standards for files on cloud-based services:

On Tuesday, the Texas bill (HB 2268) was sent to Gov. Perry’s desk, and he has until June 16, 2013 to sign it or veto it. If he does neither, it will pass automatically and take effect on September 1, 2013. The bill would give Texans more privacy over their inbox to shield against state-level snooping, but the bill would not protect against federal investigations. The bill passed both houses of the state legislature earlier this year without a single "nay" vote.

This new bill, if signed, will make Texas law more privacy-conscious than the much-maligned (but frustratingly still in effect) 1986-era Electronic Communications Privacy Act (ECPA). With the ECPA, federal law enforcement agencies are only required to get a warrant to access recent e-mails before they are opened by the recipient.

As we've noted many times before, there are no such provisions in federal law once the e-mail has been opened or if it has been sitting in an inbox, unopened, for 180 days. In March 2013, the Department of Justice acknowledged in a Congressional hearing that this distinction no longer makes sense and the DOJ would support revisions to ECPA.

Unprecedented e-mail privacy bill sent to Texas governor’s desk [Cyrus Farivar/Ars Technica]


  1. What’s so hard about a law that says if an average person can’t get it, it needs a warrant? Makes it simple and future proof.

    1. It seems like a great idea but the simpler and more flexible you make it the more it needs nailed down later when it comes to be used.

      You’re just trading the effort of drafting it precisely for years of court battles over what an average person is (in general and at this point in time) and if that average person could have got hold of whatever it was in this particular case.

    1. My feelings exactly.  On the one hand, a positive legislative precedent is coming from Texas, good job.  On the other, the first phrase that popped into my mind is “Even a broken clock gives the right time twice a day”.  However, there’s still the governor’s desk to deal with, so let’s see if Texas can break its’ unholy “perfect streak”.

      1.  The Texas I grew up in was all progressive badass New South shit. It was awesome. They say Dan Rather moved up so fast at CBS because he was the first live TV idiot in a hurricane reporter and because of his coverage in the ’68 Chicago DNC. But Rather would never have risen in CBS if he hadn’t played a role in Houston’s “Strange Demise of Jim Crow”, which was in some ways the most badass desegregation effort. But it was all secret. There was a total media blackout and Rather helped lead in this.

        This was the New South I grew in. We had the oil bidness sending representatives to the schools to make sure we were learning proper geology and evolution. We had comprehensive sex education. We hoped to make our mark on the world community we were part of.

        But it all started going wrong. Electing Ann Richards was our last hurrah. When she lost to W in ’94 Texas, and most of the rest of America, began a descent into madness.

        I am sorry that we Texans so grievously failed our nation.

        1. Don’t forget Lyndon Johnson, truly a force of nature and larger-than-life politician with his socially progressive heart in the right place.
          Yeah, Texas used to be like that, hopefully it will again.

      2. The Texas legislature has passed a number of really good laws in recent years. The 2011 Anti-SLAPP law is one of the best such laws in the country. Also that year, HB 215 reformed evidence handling in criminal cases across the state. The Innocence Project helped draft the bill and praised the final form a lot. There’s currently a bill before the governor that gives habeas relief for people convicted on junk science evidence, and more strictly regulates “expert” testimony in the future.

        Meanwhile stupid bills, like the one to require the state to regulate public nudity by issuing nudity licenses, don’t even make it out of committee.

        Texas is also executing far fewer people in the past (falling behind Florida in total executions, and executing less per capita than several other states–less than a third of the rate under Gov. Bush). And the state actually closed a prison last year, something that hasn’t happened in over a century.

        The Texas Republican party has finally grown up, and learned to govern properly.

        1. I don’t think we can say they’ve grown up until Texas quits leading in executions every year and finally abolishes the death penalty like 18 other states have done, a couple of them over a hundred years ago.

    1. That’s the thing, isn’t it?  “Sensible” is in the eyes of the beholder.
      Good for Big Business?  It’s God’s will for this great nation.
      Good for the General Populace?  What are you, a mooslem communist?

  2. No, no no! Not symbolic at all! The overwhelming number of prosecutions including for the most serious cases like murder, sexual assault, child abuse, etc., all take place in STATE courts. The new warrant requirement applies in all those cases, which means it applies in most criminal cases in Texas, by a longshot. Ask your friends at EFF-Austin about it, they were part of the Texas Electronic Privacy Coalition that promulgated and helped pass the bill. States get to establish their own rules of criminal procedure with SCOTUS rulings and federal law as a floor, so the law headed to Perry covers every state and local cop in Texas, which means peace officers at more than 2,600 agencies.

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