Civil Liberties

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


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and FBI are justifying warrantless searches of Americans' electronic communications based on a loophole in an outdated law that the U.S. Court of Appeals for the 6th Circuit ruled was unconstitutional," Udall said in a statement sent to CNET Thursday.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