Many questions remain about NSA being provided with emails and phone records of individuals — or, at least, the metadata as explained in recent news stories.  It’s unclear what, if any, action Congress will take based upon the public disclosure about these activities.

What’s very interesting is that many States were already moving ahead in the area of online privacy.  Antone Gonsalves has written about recent State activity in this area (see,; “Privacy advocates hope Texas law against online snooping inspires Congress”).

The Texas law (signed into law last week), requires law enforcement agencies to obtain a warrant in order to read people’s emails.  Texas is, as Mr. Gonsalves notes, the first State to pass such a law.  The California Legislature, he wrote, is considering a bill that would outlaw warrantless email surveillance as well as “snooping” on messages and profile information that are posted on social media sites.  Mr. Gonsalves’ third State example is Maine; the State Legislature last month passed a bill that would require a warrant be obtained for gathering location information from mobile phones.  The Maine bill has not yet been enacted into law since the Legislature is looking for funding for its implementation.

What do privacy advocates hope for?  Per Mr. Gonsalves, they are hoping that the State-level activity will work to build pressure on Congress to update the Electronic Communications Privacy Act (ECPA).  ECPA only requires a warrant for unopened mail.  Under ECPA, no warrant is required either for opened email or for email left unopened for more than 180 days.

You might wonder how Texas, California and Maine could pass laws that are stricter than ECPA.  The Stored Communications Act of 1986, passed as part of ECPA, has a provision giving States the right to pass privacy laws that are stronger than federal laws.

It will be interesting to see if more States follow the leads of Texas, California and Maine by enacting similar types of email privacy laws.