It may come as a surprise to those familiar with the Fourth Amendment — and those who, much to the chagrin of the IT department, never delete their emails — that the government can, without a warrant, read your emails after they're dormant for 180 days.
"It's totally a surprise to people," Rep. Jared Polis, D-Colo., told CQ Roll Call on Tuesday. But Polis and Kansas Republican Kevin Yoder are trying to change that.
They're re-introducing a bill Wednesday that would prohibit internet communications providers from handing over emails to the government without a warrant. Under current law, all emails are fair game with a subpoena after 180 days — and that subpoena goes to the email provider, keeping the actual email recipient and sender out of the loop.
The proposal from Polis and Yoder would require a warrant for criminal investigations, and a subpoena issued to the actual person for civil matters — the same legal treatment that documents like paper mail receive.
"What the administration wants to do is to not even notify the person who's the person, and go around the individual," Yoder told CQ Roll Call, saying he thinks Americans would be "disturbed" by the current law.
"It's really the administration versus the rest of the world," he said.
Polis and Yoder previously sponsored legislation in the 113th Congress to end the 180-day rule, and while that bill never made it to the floor, they think the 114th Congress could be different from the previous one.
"We really hope that this Congress is the one to do it," Polis said Tuesday. For starters, they're introducing the bill Wednesday with at least 223 co-sponsors — already more than enough to pass the bill in the House. "I mean, introducing it with 223 is an amazing number," Polis said. "That's huge."
They'll also be pushing for even more co-sponsors, hoping to get the bill past a two-thirds threshold so that they can show leadership the legislation would pass under suspension of the rules. That's an important number because one of the members not co-sponsoring the legislation is Judiciary Chairman Robert W. Goodlatte, R-Va. It's Goodlatte's Judiciary Committee that has jurisdiction over the bill, and he never brought it before the panel in the 113th.
But Yoder said he's had positive conversations with Majority Leader Kevin McCarthy and Majority Whip Steve Scalise, both of whom seemed "very supportive" of the bill.
The bill, which was introduced in the Senate during the last Congress by former Senate Judiciary Chairman Patrick J. Leahy, D-Vt., and Republican Sen. Mike Lee of Utah, has momentum going into the 114th Congress, Yoder said.
With Americans showing frustration over privacy matters at the National Security Agency, Yoder feels it's "absurd" domestic agencies can see your emails without a warrant and without you ever knowing it.
Since the 1986 Electronic Communications Privacy Act — an "arcane law" by internet standards, Yoder said — old emails have been considered open season for government eyes. The government argues that, after 180 days of lying dormant, internet communications, such as emails or gchat records, are the equivalent of digital trash.
But that's not how Polis and Yoder see it, and they're betting that Americans feel the same.
Polis said he wants the same process in place that exists for other communications, arguing that people treat their private emails how they treat their private phone conversations or text messages. "And the law should catch up and treat it the same way," he said.
For Yoder, he said it's clear the administration doesn't believe Americans should have an expectation of privacy for email.
"And that's what it comes down to for me," he said, "that Americans do have an expectation of privacy in their email accounts."
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