Did you lock your front door when you left for work this morning? Rest easy, then, knowing your papers are secure. But what about your emails? Not so much. Because right now, an outdated law threatens the Fourth Amendment protections of every American who uses the Internet. Whether you are a committee chairman or an unpaid intern, your digital privacy is currently at risk.
Wednesday is Data Privacy Day, and it’s as good a day as any to talk about the urgent unfinished task awaiting the new Congress — protecting Americans from unwarranted government intrusion into our private lives.
The Electronic Communications Privacy Act was written in 1986, well before the World Wide Web as we know it today existed. The ECPA was actually intended to protect the privacy of the relatively few Americans who were using a brand new form of communication — electronic mail. The law’s authors could not imagine a reason why people would keep their emails after sending or receiving them. Computer hard drives were small then, and online storage was limited and expensive. So the law allowed the government to access emails without a warrant when those emails had been left with third party servers for more than 180 days.
In 2015, with free, unlimited email storage, cloud computing and Americans’ increasing reliance on the Internet to communicate, work, recreate and learn, warrantless access to everything we store online for longer than six months is an invitation to the government to disregard the Fourth Amendment prohibition of “unreasonable search and seizure” of Americans’ “persons, houses, papers and effects.”
Fortunately the effort to update the ECPA is backed by the broadest coalition of supporters imaginable, who have stepped forward to safeguard our constitutional rights in the digital era. Reps. Kevin Yoder and Jared Polis introduced the Email Privacy Act in the House last Congress, which received support from more than 270 members. In the Senate, the ECPA Amendments Act, written by Sens. Patrick J. Leahy and Mike Lee, passed the Senate Judiciary Committee unopposed. Both bills would simply have required that government agents obtain a warrant from a judge by showing probable cause to believe a crime is being committed before they may access information we store online for any length of time, just as they would to access information we store in a safe or file cabinet. Theirs is a simple, overdue correction that ensures our Fourth Amendment protections remain intact as technology continues to advance.
Congress should have passed the bipartisan ECPA reform bills last year. But one federal agency, the Securities and Exchange Commission, essentially blocked its passage. As a civil regulatory agency, the SEC doesn’t have warrant authority. It only has subpoena power. By holding up ECPA reform, it’s trying to obtain the power of a warrant with the lower standards of proof required to issue a subpoena. In short, the SEC wants indiscriminate power to investigate American businesses and their employees and customers by gaining access to private records and property stored online, without convincing a judge a crime is likely being committed. That is an unprecedented, unnecessary and unjust power grab, and rather than acquiescing to it, members of Congress should regard it as a cause to rebuke the agency that attempted it.
The government can’t tap our phones, open our mail or search our homes without persuading a judge to issue a warrant because a crime is likely being committed. But ECPA gives the government the right to subpoena anything we store online for more than 180 days — business plans, financial records, diaries, love letters, anything — without a warrant or even a good reason to believe we’re committing a crime. That is an intolerable invasion of privacy in a country founded on ideals of personal liberty.
The purpose of ECPA was to protect our privacy. Technological innovations have now turned that protection on its head, making it a threat to our privacy instead. Its original intent must be restored. Government must live within the letter and spirit of the Fourth Amendment. Our privacy, our economic future, our way of life depend on it.
As the new Congress begins, ECPA reform should be a top priority. ECPA reform is simple. It’s bipartisan. And it would be a huge step towards strengthening the privacy of our online communications. Congress must stand up to the SEC and pass bipartisan ECPA reform legislation. By doing so, Congress will send a strong message that our rights will ultimately prevail over the exploitation of new means to circumvent them.
Gabe Rottman is a legislative counsel and policy adviser for the American Civil Liberties Union. Katie McAuliffe is federal affairs manager and executive director of Digital Liberty at Americans for Tax Reform. Want More Stories Like This? Subscribe to our Thought Leaders Newsletter.