The Texas Legislature has sent a bill to Gov. Perry’s desk that would require a warrant to open any email, no matter how old the email is. Ars Technica has the story:

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 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 sat 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.

Proposed amendments to ECPA would require federal law enforcement agencies to obtain a warrant to open email, outside of an emergency situation. It’s encouraging that even in a state like Texas, lawmakers recognize that due process must be applied to the digital realm as well as the physical one.

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