This week, the Senate Judiciary Committee will meet to consider legislation introduced by Sens. Mike Lee, R-Utah, and Patrick J. Leahy, D-Vt., to fix a law that time and technology have made incompatible with its original purpose.
The effort to strengthen privacy protections online has the support of hundreds of Senators and Representatives, and is backed by the broadest political coalition imaginable. Republicans and Democrats and independents, liberals, moderates and conservatives, libertarians, free market advocates and social justice activists, small and big business and labor, have all come together to support the necessary and long overdue reform of government practices that threaten the privacy of every American who uses the Internet.
The Electronic Communications Privacy Act (ECPA) was signed into law in 1986, before the World Wide Web existed. Its purpose was to protect the privacy of the relatively few Americans who used the Internet to communicate with each other. Not many people had home computers then. Hard drives were small and service providers offered limited and very expensive storage. So few people used email that keeping an email after sending or reading it was practically unheard of. Emails stored for more than a few days or weeks were assumed abandoned.
Thus, it seemed perfectly sensible for lawmakers to allow the government access without a warrant to emails stored with third parties for more than 180 days. No one imagined why anyone would want to keep a digital message longer than six months.
Times change. And in the Internet Age, times change faster than ever before. The world of 2015 is as different from 1986 as the Industrial Age was from the era when agriculture dominated national economies. Today, we do everything online. And we keep everything online. We store emails, financial records, work documents, photographs, music, personal diaries, anything that can be digitized, and we store them indefinitely.
Yet, thanks to antiquated ECPA, the federal government may, without any evidence a crime is being committed, subpoena anything we have kept with third party service providers for longer than 180 days. Anything, no matter how personal. That’s an intolerable invasion of every American’s Fourth Amendment right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Government agents may not search our homes or offices, rifle through our filing cabinets or storage spaces, wiretap our phones or private conversations without first convincing a judge there is “probable cause” to believe a crime is being committed and getting a search warrant. Common sense and bedrock American values argue that the way we communicate, keep records, transact business, learn and recreate in the 21st century should be entitled to the same protections.
That’s why the ECPA reforms are backed by such a large and diverse coalition. Simply put, they would grant the same right to privacy to emails or anything we store with third parties, no matter how long we store them.
Almost all Americans can agree on the basic principle that government should obtain a warrant before searching our records. Not every bill has the support of hundreds of members of Congress.
But as is often so, opponents of reform -- in this case, government agencies that want to add to their legal authority – know that the broadest political coalitions and largest bipartisan majorities in Congress can be undone by adding even seemingly innocuous provisions to the basic consensus.
Some government agencies, such as the Securities and Exchange Commission (SEC) are reported to be seeking special exemptions from the law to acquire powers they were never intended to possess. Some law enforcement agencies asking for emergency authority, even though the legislation has emergency exceptions in cases where serious injuries or deaths might occur.
That’s why we hope the Senate Judiciary Committee will pass the ECPA Amendments Act, as is, without substantive changes that could threaten widespread support for reform. In these times of gridlock and excessive partisanship, members of Congress and Americans of all political views have united to fix a problem that threatens the liberty of everyone.
What a shame it would be for executive branch opportunists to destroy this rare political consensus in order to maximize their own power at the expense of our freedom.
Grover Norquist is president of Americans for Tax Reform (ATR); Nuala O'Connor is p resident & CEO of the Center for Democracy & Technology
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