Imagine police rifling through your desk, then boxing up and carting off any mail or correspondence that was older than six months.
Ridiculous; they’d have to have a warrant. But the same Fourth Amendment protection you enjoy at home has yet to be extended to the emails and other electronic communications that you’ve sent or received and are stored on servers by Internet service providers and others. Currently, law enforcement can obtain emails that are more than 180 days old from service providers without a warrant and without notifying the targets of their investigations.
That could change following Wednesday’s unanimous — that’s 419 to 0 — vote in the U.S. House to pass the Email Privacy Act, which provides a long-needed overhaul of the Electronic Communications Privacy Act, first passed in 1986 when email was mostly reserved for use by military personnel, government employees and academics, years before home dial-up modems and alerts of “You’ve got mail!”
The Email Privacy Act would extend warrant protection, requiring law enforcement, including civil enforcement agencies such as the Internal Revenue Service, the Federal Trade Commission and the Security and Exchange Commission, to obtain a court order before compelling service providers to provide the contents of customers’ emails that have been stored on their servers.
Rep. Suzan DelBene, D-Washington, who worked on mobile communication issues when she was at Microsoft, has pushed for modernization of the 1986 act since she was elected to represent the 1st District; she sponsored the act introduced by Rep. Kevin Yoder, R-Kansas.
“After spending two decades in the technology sector where things evolve at light speed, I can’t believe our email privacy laws date to the 1980s,” DelBene said on the House floor prior to Wednesday’s vote.
A related bill that DelBene is pursuing would extend these protections to the geolocation data contained on smartphones.
The privacy act has support from diverse corners, including technology companies such as Google and Facebook, the American Civil Liberties Union and the Electronic Freedom Foundation. While supportive of what was passed in the House, privacy advocates didn’t get the perfect bill. An amendment allows law enforcement and government agencies to avoid notifying the targets of investigations when warrants are issued for emails. Service providers are allowed but not required to notify customers of the court orders, unless a judge approves a delay of notification, but for no longer than 180 days.
The Email Privacy Act had overwhelming bipartisan support in the House, but did face opposition from agencies, including the FTC and the SEC, which said it would hamper their investigations, the website MorningConsult reported earlier this month. While their investigations and those of other agencies are important, requiring a court order doesn’t seem to be an unreasonable step, especially since law enforcement and those agencies already face that standard for other documents and information. Email should be treated no differently.
The legislation now moves on to the Senate. Taking a cue from its unanimous passage in the House, senators should act quickly to consider and pass the Email Privacy Act, without weakening it with further amendments.
The authors of the Bill of Rights could not have imagined our world of email and text messages, but that doesn’t mean they would have provided them any less protection than words written with pen and ink.
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