Federal Agents & a 4th Amendment Internet problem
By Grover Norquist & Laura Murphy
Texas Insider Report: WASHINGTON D.C. In the age of the Internet your privacy is not 4th Amendment safe. Government agents cannot tap your phone without a warrant issued by a judge but the government claims the authority to read your emails
without a warrant. The government cant open your postal mail or seize papers from your home without a warrant but it
says it can read any private and sensitive documents youve stored in the Internet cloud."
The government claims this authority to violate your privacy under a federal law called the Electronic Communications Privacy Act or ECPA. However ECPA was written in 1986:
- Before most people had computers at home
- Before laptops tablets and smartphones changed our lives
- Before social media and the World Wide Web
- Before most people even used email
Imagine if federal agents without a search warrant listened to your telephone conversations read your mail or seized private records you kept in a locked file cabinet.
Imagine they did so without having probable cause to believe you were involved in a committed crime.
Finally imagine that the statutes they relied on were written in the days before most people even had telephones.
Living in the United States these extraordinary invasions of privacy are prohibited by the 4th Amendment to the Constitution which protects Americans from unreasonable searches and seizures" of their persons houses papers and effects." In many instances this is true so it is hard to believe that your digital life is not protected from federal agents by the 4th Amendment.
In 1986 email service providers did not store emails for very long after they were sent and read. In 1986 it was practically inconceivable that a service provider would store email for more than 180 days. Therefore
ECPA treated older email almost as if it were abandoned property allowing a government official to demand it from the service provider with a subpoena issued without a judges approval.
Given the dial-up technology of 1986 documents were stored locally on hard drives or on floppy" disks. It seemed implausible that an individual or small business would ever have the bandwidth allowing instant access to photos and documents remotely stored on the sophisticated computers of service providers.
As a result ECPA says that government agents can demand stored documents even newer documents and documents still in draft without a judges approval.
Technology has changed dramatically since 1986. With free unlimited email storage and high-speed broadband service widely available we no longer have to download email onto our hard drives. Instead we indefinitely store our email and other personal effects private reflections financial records photographs and love letters in the cloud" where the
power and flexibility of massive servers are available for free or at very low cost.
The essential elements of ECPA have not changed since 1986 and the courts have failed to keep pace saying remarkably little about the Constitutions application to new technology. Hence the government can contend ECPA gives it the authority to ignore your privacy to an extent that would have shocked the framers of the Constitution.
Our proposal is simple:
- All private communications and documents stored online with service providers should have the same protections from unreasonable search and seizure as material locally stored.
- If government agencies want to read emails they should go to court show probable cause to believe a crime is being committed and obtain a search warrant just as they would for postal mail and telephone calls.
We do not intend our reforms in any way to impede investigations of terrorism or serious crimes such as child pornography. We leave in place laws regarding child pornography. We preserve emergency exceptions for cases posing immediate threat of harm. We do not touch authorities for national security investigations and international terrorism.
Our reforms focus on ordinary investigations and all we are saying is that the warrant standard established by the Constitution for privacy in the physical world should also protect privacy in the digital world.
Today we announce the launch of Digital 4th an effort by the Center for Democracy and Technology the American Civil Liberties Union and Americans for Tax Reform to give digital content the warrant protection the Fourth Amendment to the Constitution requires.
It is time to reaffirm in law what most Americans assume is an essential guarantee of living in the
U.S.: that government power should be subject to basic checks and balances.
Grover Norquist is president of Americans for Tax Reform. Laura Murphy is director of the Washington Legislative Office at the American Civil Liberties Union.
