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Published: Saturday, December 1, 2012, 12:01 a.m.
Guest commentary / Electronic confidentiality

Bring email privacy law into 21st century

If you left a letter on your desk for 180 days, you wouldn't imagine that the police could then swoop in and read it without your permission, or a judge's. But that's just what law enforcement officers can do with your email. Using only a subpoena, government agents can demand that service providers turn over electronic communications they have stored, as long as those communications are more than six months old. Protections are even weaker for opened e-mail or documents stored in the "cloud." The advertisements that the Postal Service piles into your mailbox every day are legally sacrosanct; the medical notifications your health-insurance company sends to your Gmail account are not.
This bizarre reality is thanks to the 1986 Electronic Privacy Communications Act, a law written before anyone dreamed that Americans would send, receive and store so much private information over third-party services such as Gmail or would draft documents using cloud computing that they intend to keep confidential. Now Sen. Patrick J. Leahy, D-Vt., chairman of the Judiciary Committee and the 1986 law's original author, wants to amend it into the 21st century.
Mr. Leahy is set to press his committee Thursday to adopt a series of changes that would establish the confidentiality of email and other electronic communications. Service providers would be prohibited from handing over email, and Mr. Leahy would get rid of the strange 180-day rule that the government can now use to compel disclosure. To access any email content, law enforcement officers would be required to obtain a search warrant from a judge after demonstrating probable cause. The amendments would also oblige officials to give those whose email they are reading a copy of the search warrant. This would bring the law in line with the reality that Americans are using electronic communications services to exchange and store all sorts of sensitive data. Many journalists rely on the cloud to transmit and store their work; the Newspaper Association of America, to which The Post belongs, is part of the Digital Due Process Coalition, which is lobbying for Mr. Leahy's amendments.
There is always a trade-off between protecting Americans' privacy and empowering law-enforcement officers to fight crime. But the choice is not difficult in this case. A letter to the Judiciary Committee from former federal, state and local prosecutors notes that the amendments would clarify the rules under which law-enforcement officials operate while maintaining essential exceptions -- for example, in emergency situations such as kidnappings. In fact, the amendments would arguably not go far enough since they would still allow police to monitor some information, though not the content of digital documents, without a warrant -- records regarding the time spent using electronic services, certain payment records and other information that service providers collect.
Still, Mr. Leahy's amendments are worthy of enthusiastic support from his colleagues. They are already too long in coming.

This editorial appeared in Thursday's Washington Post.

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