By Pamela J. Bethel
A broad coalition in Congress is attempting to amend the Electronic Communications Privacy Act (ECPA) by establishing a uniform search warrant requirement that the government must follow if it wishes to ask a third-party service provider, such as Google, to disclose the content of an individual’s emails. In order to obtain your personal emails from a provider, the government would have to demonstrate probable cause to a judge — the same standard that is required, under the Fourth Amendment, to search a home or open a letter.
This proposal would essentially codify a 2010 ruling of the U.S. Court of Appeals for the 6th Circuit in United States v. Warshak, in which the appeals court held that people have a reasonable expectation of privacy in the content of their emails stored on third-party servers and that the content of these emails is subject to Fourth Amendment protection. The court wrote that email “requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.”
Right now, however, federal statutory law does not require law enforcers to get a warrant to read emails or other forms of online communication — such as documents saved on a “cloud” service — if they are more than 180 days old. For such messages, only a subpoena, which requires a lower threshold of judicial approval, is required. That’s the status of protection under the ECPA, which was passed in 1986, well before the advent of the digital age we are now in.
One important D.C. player is opposing the bill. That is the Securities and Exchange Commission, which contends that its law enforcement ability would be hamstrung by the requirement of a warrant with probable cause. The SEC has requested an exemption from the warrant requirement, arguing that because it is a civilian agency and not a law-enforcement entity, it should retain subpoena powers.
There should be no such exception written into federal law. As the Center for Democracy and Technology wrote last year, “That one agency could hold up important reform to protect the privacy of millions of Americans in order to push for new, expansive warrantless snooping powers that it does not need is ludicrous, especially during this time of heightened concern over digital privacy.”