Actually, We Think You Do Need a Warrant, Bipartisan Team of Congresscritters Tells Administration

EmailPublic DomainUsually, when Republicans and Democrats link hands and sing "Kumbaya," I grab my wallet and look for someplace to hide. But donkeys and elephants alike — at least, some of them — have found something truly worthy of agreement: They think the federal government should get a warrant before it goes snooping through Americans' email. As noted by Reason 24/7, Sen. Mo Udall (D-CO) and a flock of House members from both parties are pushing legislation that would essentially point to the Fourth Amendment and say, "we really mean it."

According to CNet's Declan McCullagh:

Now Udall, a Colorado Democrat, is taking aim at the Justice Department, which has claimed the right to conduct warrantless searches of Americans' e-mail, Facebook chats, and other private communications.

"I am extremely concerned that the Justice Department and FBI are justifying warrantless searches of Americans' electronic communications based on a loophole in an outdated law that the U.S. Court of Appeals for the 6th Circuit ruled was unconstitutional," Udall said in a statement sent to CNET Thursday.

Udall's statement cites a CNET article yesterday that was the first to disclose the Justice Department and the FBI's electronic search policies. The article was based on internal government documents obtained by the American Civil Liberties Union.

The senator's statement urges Congress to move quickly to update the 1986 Electronic Communications Privacy Act -- enacted during an era of dialup modems and the black and white Macintosh Plus -- that currently does not require search warrants for all e-mail messages. The 6th Circuit ruled in 2010, however, that the privacy protections enshrined in the Fourth Amendment require police to obtain search warrants signed by a judge first.

As the ACLU notes, that Sixth Circuit decision, United States v. Warshak, technically only applies in four states, so prosecutors and agents elsewhere have blissfully carried on, hoping the ruling and its search and seizure restrictions don't become contagious. In fact, the FBI continues to provide national guidance to its employees that ignores Warshak.

Members of the House are also on the case, says Politico's Alex Byers:

Four Republican congressmen introduced a pair of bills this week that would require government investigators to score a warrant before obtaining someone’s email content. Arizona Reps. Matt Salmon and Trent Franks are partnering on a House version of ECPA reform; Kansas Rep. Kevin Yoder and Georgia Rep. Tom Graves are teaming up on the Email Privacy Act.

Both bills are companion measures to legislation from Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) that cleared the Senate Judiciary Committee last month. Leahy has long been pushing to update the rules. This week’s Republican bills were an exclamation point after Lee officially signed on to Leahy’s push and Republican Rep. Ted Poe of Texas joined an ECPA reform measure by California Democratic Rep. Zoe Lofgren.

Byers speculates that recent revelations about the Internal Revenue Service — never a public favorite — snooping on private communications may have helped spark widespread interest in privacy protections that's motivating general reform. The IRS has since promised that, uh uh, it would never, ever do that again. But it seems to be game over.

Frankly, it doesn't matter what gets Republicans and Democrats working together on something that actually limits the government, so long as they do it.

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  • Almanian!||

    Frankly, it doesn't matter what gets Republicans and Democrats working together on something that actually limits the government, so long as they do it.

    Shorter JD: "What difference - at this point - does it make?

    Also, I'm hearing Arnold in "Predator": "DO IT! DO IT NOW! HERE I AM!! WHY DON'T YOU KILL ME??!!?"

  • lisaruth0321||

    like Cynthia responded I am impressed that a person able to get paid $8015 in a few weeks on the internet. did you look at this web page... WWW.DAZ7.COM

  • Almanian!||

    JD, I'd be remiss if i didn't say "thanks" for at least trying to be the anti-Balko. Thanks

  • nilecroc||

    Why does this rewuire extra legislation? Its right the in the fucking fourth.

  • nilecroc||

    *require

  • nilecroc||

    *there

  • ||

    Why? FY,TW.

  • Jose Chung||

    Because if they don't write it into a giant piece of legislation that no one person will have read, they can't sneak in all the little exceptions to the rule that effectively gut it before it's even been passed while they soak up accolades for being the defenders of civil rights.

  • Jesus H. Christ||

    It's great to see an attempt to stand up for something other than personal greenback pocket lining. However, it leaves me confused. What motivates these people? They seem to suffer some sort of political bipolar disorder. Most of the time it's self-serving statist crap. Out of nowhere, they pay attention to the Constitution, at least a part of it. Maybe it's just an attempt at creating co-dependency.

  • ||

    I would imagine it is probably a result of a lot of angry constituents contacting their offices.

    Remember, reading your emails isn't something Congress members are really going to be doing. So this isn't a vote to reduce their own power. It also makes their constituents happy and makes them look like they give a shit about civil liberties. So it's pretty much all win for them.

  • Ptah-Hotep||

    Four Republican congressmen introduced a pair of bills this week that would require government investigators to score a warrant before obtaining someone’s email content.

    Damn shame you have to introduce a bill to tell the asshats to follow the constitution.

  • Anonymous Coward||

    THE CONSTITUTION IS NOT A SUICIDE PACT! 21st Century! Dead white slaveowners! Terrorism! The Right People are in charge! Something, something, racist, something, something, dark side....

  • ||

    FIRE! CROWDED THEATRE!

    Lincoln suspended Habeus Corpus, so whatever Obama does is ok!

    War on terrrrrrrrrra!

    b000ya!

  • Mock-star||

    BOOOOOOOOSSSSHHH!!!11!eleventy!11!

  • ||

    I guess congress deserves an attaboy, but it's ridiculous they HAVE to do this. FBI/Obama admin are out of control. They are gaming the 4th amendment for pete's sake.

    How could they POSSIBLY justify looking at somebody's email without a warrant? It really seems that there is this "internet" exception to the constitution (1st and 4th specifically) that goes right along with the long maligned "drugs" exception to the 4th.

    Private communications are private communications. We don't open mail w/o a warrant. Email should have no less protection.

    We have cyberstalking etc. laws that crap on the 1st amendment, overbroad and making it illegal to call somebody a name... on the internet. Apparently the 1st amendment doesn't apply there.

    And we have this rubbish too.

    From "constitutional scholar" (lol) Barack Obama's admin.

  • Ptah-Hotep||

    FBI/Obama admin Police are out of control. They are gaming the 4th amendment for pete's sake.

    DUI checkpoints for instance. It is the nature of the beast that people take advantage of all he power they can grasp.

  • ||

    How you went from this subject to DUI checkpoints, I don't know but...

    My state we have a right to privacy in our constitution. Thus, no dui checkpoints.

    It's arguable at best that DUI checkpoints violate the 4th. All the 4th requires for a seizure is it be reasonable.

    Regardless, I think it's a great example of how the scotus applies the "balancing" test and however one feels about sobriety checkpoints, I think it's a good idea to read the case that gave them legal justification.

    I respect those who think they are unconstitutional. I believe it's a close call, and I certainly believe they are correctly seen as unconstitutional in WA state since we have a right to privacy.

    http://caselaw.lp.findlaw.com/.....&invol=444

    A good case to read in its entirety.

    Regardless, one thing that is heartening is how much safer we all are.

    The fatality rate in 1968 was 5.2/100 million miles traveled.

    In 2011, it was 1.10

    That is an ASTOUNDING # of people who get to walk around and LIVE compared to 1968. Think about it. I think the evidence is clear that aggressive DUI enforcement is a substantial factor in all these lives saved, along with improved emergency medicine response, vehicle safety (airbags, better crash resistance).

  • ||

    a fun stat: In 2009, 84 percent (10,102) of the 12,012 drivers with a BAC of .01 or higher who
    were involved in fatal crashes had BAC levels at or above .08, and 56 percent
    (6,685) had BAC levels at or above .15. The most frequently recorded BAC level
    among drinking drivers in fatal crashes was .17.

    http://www-nrd.nhtsa.dot.gov/Pubs/811385.pdf

    Another fun fact: Of the persons who were killed in traffic crashes in 2010, 31 percent died in alcohol-impaired driving crashes.

    http://www-fars.nhtsa.dot.gov/Main/index.aspx

    Needless to say, far fewer than 31% of persons on the roadway were alcohol impaired.

    Either way, I respect those who think DUI roadblocks are violative of the 4th. It's a close call and the dissent in the SCOTUS decision makes some good points

  • Ptah-Hotep||

    How you went from this subject to DUI checkpoints, I don't know but...

    Gaming of the fourth. It is not only the Feds. I know the Supremes say it is constitutional, but I do not agree. Sounds like your state has it correct. Also, you cannot put all he credit for the fatality rate on DUI checkpoints, as cars are built much safer today, as you say, along with improved emergency medicine.

    My point, again, is that agencies, either state, local, or fed will take all the power he supremes will give them.

    As an aside, I think DUI laws are redundant. Most of the stops that lead to DUI's are initiated for something that is already on the books; I.e. leaving lane of travel, etc. that is all the probable cause, IMO, that cops need to make the arrest IF it is determined that the person is a hazard to others.

  • ||

    My state has it correct because we have a DIFFERENT constitution. Ours specifically recognizes a right to PRIVACY. The 4th does not.

    Many states recognize broader civil rights than the federal standard.

    Also, fwiw, increased DUI enforcement is not really something law enforcement embraced. I realize checkpoints are an increased power, but in general, MADD met with some resistance. The "culture" of law enforcement, with many agencies and officers was that "boys will be boys" and a little drinkin' and drivin' was no big deal. Seriously. It wasn't law enforcement officers seeking increased DUI enforcement powers as much as MADD, and legislators THRUSTING it upon them

    The same holds true generally for the increased powers under VAWA and domestic violence. The culture was resistant , to a large extent, in getting involved in "family matter" (a little slap or shove here and there) where it didn't rise to the level of broken bones or bruises, the culture was "it's a family affair. No report needed".

  • ||

    Cops don't need PC for the stop, fwiw, they just need reasonable suspicion, but DUI laws aren't redundant. The traffinc infractions (not crimes) that lead to DUI cases are often something a mere inattentive driver would make but they cue to the fact that the driver MIGHT be DUI.By being DUI, the driver is a person whose fine motor control, judgment, ability to divide attention, reaction time, etc. have all been reduced by alcohol consumption and that's why it's not redundant. It's a crime we take seriously and as the NHTSA etc. stats show - alcohol impaired drivers are SUBSTANTIALLY More likely to crash. That's the entire justification behind DUI enforcement - the increased carnage

    And again, whatever you think of DUI roadblock (I respect your opinion), as fas as traffic safety goes, law enforcement, EMS, vehicle design engineers, etc. are doing a "bang up" job :)

    The stats don't lie. To see a drop in fatality rates from 5.2 to 1.1 is an astounding example of literally THOUSANDS of lives being saved that would have been just dead meat on the roadway decades ago. We have law enforcement, MADD, vehicle designers, and god forbid maybe even Ralph Nader (god forbid - maybe a little bit) to thank for an AMAZING increase in personal safety.

  • Boisfeuras||

    It is the nature of the beast that people take advantage of all he power they can grasp.

    "But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go."
    - Montesquieu

  • Mickey Rat||

    "It really seems that there is this "internet" exception to the constitution (1st and 4th specifically) that goes right along with the long maligned "drugs" exception to the 4th."

    The internet did not exist at the time the 4th amendment was written, therefore the Framer's could not possibly intended the 4th apply to the internet. Basically the same reasoning which allows the FCC to exist.

  • Fist of Etiquette||

    I look forward to the watering down of the legislation to just shy of authorizing snooping in all cases.

  • Paul.||

    justifying warrantless searches of Americans' electronic communications based on a loophole in an outdated law that the U.S. Court of Appeals for the 6th Circuit ruled was unconstitutional,"

    Funny, I thought it was the fourth amendment that most in government considered outdated.

  • prolefeed||

    The IRS has since promised that, uh uh, it would never, ever do that again. But it seems to be game over.

    It ain't game over unless the law passes and if the IRS complies with it, or if they disobey it and if the courts rule against them and if they then comply.

    Lotta ifs there.

  • WomSom||

    Who comes up with all that crazy stuff man? Wow.

    www.GotDatAnon.tk

  • JMos||

    Every time I see the Sen. Udall on something like this I get a brief feeling of hope that it's my senator, then I remember that he's an unprincipled hack who does what ever the Obama administration tells him to do.

  • Nicholas Sarwark||

    As noted by Reason 24/7, Sen. Mo Udall (D-CO) and a flock of House members from both parties are pushing legislation that would essentially point to the Fourth Amendment and say, "we really mean it."

    Actually, Colorado is represented by Mark Udall, not Mo Udall.

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