The National Security Agency's collection of metadata such as telephone records and cellphone location information has sparked considerable outrage since it was revealed by former NSA contractor Edward Snowden last spring. But it is aguably less troubling than the privacy threat highlighted by a We the People petition that has one more day to collect the signatures it needs to trigger a White House response: the vulnerability of communication content that has resulted from a combination of evolving technology and the Supreme Court's misguided "third party doctrine."
According to that doctrine, which the Court developed in the 1970s, information voluntarily disclosed to third parties such as banks, accountants, and telephone companies is not protected by the Fourth Amendment. It therefore receives only as much protection as legislators decide to give it. Congress responded to this challenge back in 1986 by passing the Electronic Communications Privacy Act (ECPA), which aimed to make sure that messages delivered by newfangled means received the same protection as messages delivered by mail or telephone wire. But in the 27 years since then, ECPA has become woefully out of date, to the point that law enforcement agencies can plausibly claim they do not need a warrant to read your email or peruse other files held on remote servers, even though the same information would be protected if it were stored on your computer at home. Given the ubiquity of remote storage for all sorts of sensitive information, that is a pretty scary loophole, which is why legislation aimed at fixing this problem has attracted bipartisan support in Congress.
But although the Justice Department has retreated from its longstanding position that the government may read email at will as long as it has been opened or stored longer than six months, the Obama administration so far has not explicitly endorsed ECPA reform. That is where the We the People petition comes in. It currently has more than 75,000 signatures, less than 25,000 shy of the threshold for a response from the president. "We think that, if he's forced to take a stance, he'll throw his weight behind reform," says TechFreedom President Berin Szoka. Attorney General Eric Holder has said a warrant requirement for email "is something that I think the [Justice] Department will support." Tomorrow is the deadline for collecting 100,000 signatures, and the petition is more than three-quarters of the way there.