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Senate lawmakers want to make it harder for law enforcement to access suspects’ emails and location data

They’re introducing a new bill that seeks to update a 1986 privacy law that predates most tech companies.

Gun Shots Fired Near U.S. Capitol Drew Angerer / Getty

Senate lawmakers plan to restart their push tomorrow for new rules that would prevent U.S. law enforcement from seeking some suspects’ emails, location information and other sensitive data without first obtaining a warrant.

For years, Democrats and Republicans alike have harbored deep reservations with a gap in federal law that spares investigators from having to appear in front of a judge and demonstrate probable cause before they could obtain certain kinds of data. Those decades-old rules predate even companies like Google — and never anticipated the day that consumers would conduct much of their daily lives digitally.

Seeking to update the 1986 Electronic Communications Privacy Act, however, has long vexed Congress, where lawmakers have struggled to find the right balance between privacy and national security. But Republican Sen. Mike Lee and Democratic Sen. Patrick Leahy haven’t given up, and this time, the duo plans to introduce a bill on Thursday that imposes new checks on law enforcement officials and their access to information, four sources confirmed.

Their new bill is called the Electronic Communications Privacy Modernization Act, according to a copy obtained by Recode, and much as before, their effort requires law enforcement to obtain a warrant when trying to obtain emails older than 180 days.

This time, though, Leahy and Lee are going a step further: They also want to require law enforcement to clear the same high legal bar and obtain a warrant whenever they seek to collect a suspect’s location history information. Their effort is meant to clarify consumers’ rights on an issue that has previously landed in the lap of the Supreme Court.

And the draft bill proposes a number of additional changes to federal privacy rules. For one thing, it would put the onus on government officials to notify suspects whenever their data is searched in an investigation. And it seeks to stop law enforcement from slapping the likes of Google or Microsoft with gag orders that are indefinite in length — preventing those companies from informing their customers whenever their data is the subject of scrutiny.

Once introduced, the measure is sure to win plaudits from the likes of Google, Microsoft and other tech giants, as well as privacy hawks like the American Civil Liberties Union. Together, they have lobbied extensively — if sometimes unsuccessfully — to fix the 1986 law known as ECPA.

Those reform advocates scored a major victory earlier this year, when the House passed its more scaled-back reform bill, called the Email Privacy Act. The measure doesn’t really touch on issues like location information, but it still sought to introduce new privacy checks to the way law enforcement can obtain suspects’ emails.

That said, it’s unclear if supporters, teamed up with Lee and Leahy, can overcome the same forces that long have scuttled them in the Senate. The chamber notoriously moves slowly, and there is no shortage of major policy debates — including health-care reform — on its agenda. The Senate is also home to a deep bench of security hawks who tried to water down the measure the last time it came up for debate.

Nor is it clear where President Donald Trump stands on such an issue. Generally, though, Trump has supported efforts to bolster law enforcement officials and their capabilities.

For now, a spokesman for Lee confirmed to Recode that the senator planned to unveil the measure tomorrow. He and Leahy also plan to introduce the House-passed version of ECPA reform.

A spokesman for Leahy declined comment.

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