Texas closing email loophole, requiring warrant for old content: Feds should follow suit

At the federal level in the wake of the IRS and AP surveillance scandals, we're increasingly seeing headlines like this latest one from Wired declaring, "[Eric] Holder Should Demand Feds Get a Warrant to Read Our Email." The nation at large is becoming aware of something Grits readers have known for some time: Under federal law - which Texas statutes currently incorporate by reference - law enforcement doesn't need a warrant to look at emails stored with a third party like Gmail or Yahoo! once they're older than 180 days. (Quick question: What's the oldest email stored on your own personal system?)

Given this nascent national debate, Grits is pleased to report that the Texas Legislature has sent a bill to Governor Rick Perry, HB 2268, that in its amended form requires a warrant for law enforcement to access old emails, closing the loophole at least for state and local law enforcement in Texas. Federal agents can still access your old emails under the 1986 Electronic Communications Privacy Act, though Congress is (again) considering updating that law. But barring an unexpected veto (the bill amended was a prosecutor-friendly measure the governor is unlikely to oppose), Texas will be ahead of the curve on the email front. Perhaps Texas' new warrant requirement will even contribute momentum toward passing similar federal legislation.

Congratulations to freshman state Rep. Jon Stickland whose HB 3164 served as the template for his amendment to HB 2268, which would ban the sort of snooping into old emails that Congress, the US Justice Department and the courts have inexplicably allowed at the federal level. The Texas Electronic Privacy Coalition brought the bill after Stickland and a couple of other legislators specifically requested it. Ever since the Petraeus scandal, privacy-inclined folks have become increasingly aware of the vulnerability of email stored with third parties and legislators who were aware of the issue needed little priming. To my knowledge, though, Texas will be the first state to specifically address the subject through legislation.

Naturally, I'm disappointed that an amendment to the senate companion of the same bill requiring a warrant for police to access historic cell-phone location data didn't make it onto the version that finally went to the Governor. But requiring warrants for older emails is a nice get. And most of the 126 House members who voted for Bryan Hughes' cell-phone privacy amendment will be back again in 2015 when we can take another shot at it.

RELATED: See Grits' coverage from when Stickland's bill was filed and when it was amended onto HB 2268, as well as an op-ed I authored on the bill's behalf in the Dallas News.