WASHINGTON — If you’ve been remiss in cleaning out your email inbox, here’s some incentive: The federal government can read any emails that are more than six months old without a warrant.
Little known to most Americans, ambiguous language in a communications law passed in 1986 extends Fourth Amendment protections against unreasonable search and seizure only to electronic communications sent or received fewer than 180 days ago.
The language, known as the “180-day rule,” allows government officials to treat any emails, text messages or documents stored on remote servers — popularly known as the cloud — as “abandoned” and therefore accessible using administrative subpoena power, a tactic that critics say circumvents due process.
As you rush to purge your Gmail and Dropbox accounts, however, be forewarned that even deleted files still could be fair game as long as copies exist on a third-party server somewhere.
The Electronic Communications Privacy Act of 1986 was written at a time when most people did not have email accounts, said Republican Rep. Kevin Yoder of Kansas, who is leading efforts in the House of Representatives to update the law.
“The government is essentially using an arcane loophole to breach the privacy rights of Americans,” Yoder said. “They couldn’t kick down your door and seize the documents on your desk, but they could send a request to Google and ask for all the documents that are in your Gmail account. And I don’t think Americans believe that the Constitution ends with the invention of the Internet.”
Bipartisan legislation introduced earlier this month by Yoder and Rep. Jared Polis, a Colorado Democrat, would require government agencies and law enforcement officials to obtain a search warrant based on probable cause.
Agencies also would have to notify users within three business days of accessing their email or other digital communications, though law enforcement would have 10 days to provide notice. Courts could grant delays on the notification requirement to prevent the destruction of evidence or intimidation of witnesses, or in cases in which people’s safety was deemed to be at risk.
A similar bill was filed recently in the Senate by Republican Mike Lee of Utah and co-sponsored by Democrat Patrick Leahy of Vermont.
Other advocates for the bill include Republican Sens. Pat Roberts and Jerry Moran of Kansas; Senate Majority Whip John Cornyn of Texas; Democratic Reps. Emanuel Cleaver of Missouri and John Lewis of Georgia, a civil rights icon; and Yoder’s fellow GOP representatives from Kansas: Mike Pompeo, Lynn Jenkins and Tim Huelskamp.
Legislation to reform the Electronic Communications Privacy Act has foundered in Congress for years. But in the wake of revelations about the National Security Agency’s spying on Americans, momentum is building for the 2015 version of Yoder’s bill, the Email Privacy Act, as a growing coalition of liberals and conservatives find all-too-scarce common ground on the need to strengthen digital privacy protections.
Organizations as far apart on the political spectrum as the conservative Heritage Foundation and the liberal American Civil Liberties Union are united in support of the bill.
“Privacy crosses political aisles, especially when we see the government expanding domestic spying in secret in so many different ways,” said Lee Tien, a senior staff attorney for the Electronic Frontier Foundation, a digital civil liberties group that has been pushing the bill for years.
Major tech companies such as Amazon, Facebook, Twitter, Apple and Google have been lobbying in favor of the bill, too.
But as Tien points out, the Email Privacy Act doesn’t address all of the concerns raised by the tech companies and privacy advocates. It does not, for example, restrain the government’s collection of a user’s metadata, which includes information about the communications a user sends and receives but not the content of those communications.
In other words, the Email Privacy Act would not extend Fourth Amendment protections to “non-content” data. Even if the bill becomes law, customers’ names, locations, addresses, routing information and subscriber network addresses still could be subpoenaed without a warrant and without notice, although accessing the content of their conversations would require the authorization of a judicial magistrate or judge.
In hearings on Capitol Hill and in letters to members of Congress, government officials have warned that the bill would hamper civil and criminal investigations, especially for certain agencies such as the Securities and Exchange Commission, which does not have warrant authority, only subpoena authority.
Mary Jo White, chairwoman of the SEC, gave an example of an investigation in which authorities were able to obtain a critical piece of evidence by subpoenaing the personal emails of an employee even though he lived in Canada, where the emails would otherwise have been unattainable under Canadian law.
Sen. Dianne Feinstein, D-Calif., recounted the example at a meeting of the Senate Judiciary Committee in 2013. She said at the time that she was interested in working with the bill’s sponsors to address the issue raised by White and in other letters from law enforcement groups.
Feinstein’s position remains the same, and she will work with the sponsors to address the concerns raised in the letters so that agencies like the SEC aren’t prevented from conducting investigations, said the senator’s spokesman, Tom Mentzer.
The White House did not respond to a request for comment on the legislation.
Most Americans probably aren’t aware that the government doesn’t need a warrant to read the content of emails older than 180 days, Yoder said.
“In fact, when I discuss this with constituents at home, they’re frankly stunned to know that in this day and age government still believes they can sift through and spy on Americans’ email correspondence without any sort of due process,” Yoder said. “I would say many members of Congress were not aware of this and are becoming aware and the momentum is growing.”
With 239 co-sponsors, Yoder’s bill already has the support of most members of the House. He’s confident that it ultimately will have a veto-proof majority.
“I don’t know that any bill has as many co-sponsors, so it may be one of the fastest bills out of the gate in the new Congress,” Yoder said.
The bill awaits approval by the House Judiciary Committee before it can go to the House floor for a vote.
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