Congress Trudges Ahead on Perhaps Honoring the Fourth Amendment

The continuing fight for e-mail privacy and against terrible aspects of the Electronic Communications Privacy Act.


Ronald Bailey wrote on Reason earlier this month on one piece of encouraging legislation  the Online Communications and Geolocation Protection Act, which would try to end the awful current practice of considering all email over six months old completely open to government search without a warrant.


The other day Lindsay Wise at McClatchy had a good, thorough report on the current state of this debate and talks about some other similar legislation.


The Electronic Communications Privacy Act of 1986 [defining this email warrant loophole] 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.

Mike Lee (R-Utah) and Patrick Leahy (D-Vt) have a similar bill rolling in the Senate, and the major tech company players are for it. But these bills in question don't go far enough, according to the Electronic Frontier Foundation's Lee Tien:

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.

Federal lawmen whine that law enforcement might be hard with scrupulous attention to the Fourth Amendment:

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….

The White House did not respond to a request for comment on the legislation.

That the executive branch doesn't understand the implications and language of the Fourth Amendment well enough to short circuit this long, long debate is disgraceful

Back in 2013, the Obama administration at least rhetorically indicated they'd be open to some email privacy sanity, but have been reluctant to act unforced by Congress apparently.

A long record of Reason keeping an unhappy eye on ECPA and email privacy issues.

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  1. They’re about to pull the football away, Doherty. Prepare yourself.

    1. There was a guy when I was in high school named Doherty, and everyone called him Dort-Meat. Somehow I heard you say
      “They’re about to pull the football away, Dort-Meat.”

  2. Very likely, hence language like “perhaps” and “trudges.”

  3. “That the executive branch doesn’t understand the implications and language of the Fourth Amendment well enough to short circuit this long, long debate is disgraceful”

    You may be entirely too generous there.

    1. Perhaps something more like

      “is fucking evil”?

      1. or “is unconstitutional”?

        1. Well, that too.

  4. And anything with Leahy’s name on it is likely to do the opposite of its supposed intent.

    1. Anything to do with freedom in our American congress is likely to “do the opposite of its supposed intent.”

  5. “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,…”

    So she is arguing that if cops ignore the fourth amendment altogether they can make cases. Like every other argument I have heard from this administration it amounts to the same progressive shit; We want to accomplish stuff and we can’t do that if our power is limited.

    Constitutional scholar, my ass.

    1. “…the same progressive shit”

      …built cleverly on the same conservative shit…

      Please fucking keep this in mind.

      Progs and Ucons are fighting the same battle in modern America… HOW to subject and crush the collective individuals who questions and will vote to upend the establishment…

      1. “Please fucking keep this in mind.”


        The Ucons make no secret that they support expanding government authority when it comes to law enforcement, and have been consistent in this position for the past fifty years.

        The Progressives, you may recall, argued a mere six years ago that they were dead set opposed to the weakening of constitutional rights and claimed that once in office, they would “restore the constitution” as against infringements like what the
        Mary Jo White is demanding here.

        Both sides are statists on this issue, but the Progressives compound their wrongheadedness with lies. That cannot be overlooked.

        1. Yeah, the group that expends so much rhetoric on the value if small government and then died the opposite, they aren’t the liars! Lol

      2. Since the 1992 campaign, EVERY presidential race has been affected by people trying to drain the swamp that is DC. Perot did this. Bush parlayed their support to push him over the top against Gore. Obama, of course surfed that movement right into office despite being blatantly at odds with its goals.

        I figure by the time I’m 70, a few people might cotton to the fact that it’s all a big scam.

  6. And I don’t think Americans believe that the Constitution ends with the invention of the Internet

    You’d be surprised. Especially considering that many Americans believe the Constitution ends with anything-for-the-children-and-people-I-don’t-like.

    1. I shudder to think what kind of a Constitution we’d wind up with if one were to be drafted today.

      1. Seriously. I remember some on the 90s in milita/survivalist movement calling for a constitutional convention. Terrible terrible fucking idea.

      2. Just take a gander at the attempted EU constitution. It tried to cover every special interest group the 90s could conjure up. It was a fucking disaster.

        No one understands the concept of “the people”. Every special temp-trans-gender-homogenous-alt-something group has to get a shout-out. And god help them if they miss one. Or one that hadn’t been thought up yet.

        1. That was kind of what I was thinking it, but with 20% more American puritanism in the box.

    2. They thought it ended with the invention of radio (hence the broad powers of the FCC). Any communications tech invented after the 18th century is uncovered by the Bill of Rights in this estimation

  7. Some right-wing website needs to right a post headlined “Breaking: Man who spent more time in college than Bill Gates or Mark Zuckerberg Declared Incompetent for Dropping out.”

    I feel like it really gets to the heart of why this Walker thing is so fucking stupid.

    1. The Arbiter of Libertarianism, Esq. would like a word with you.

    2. When did you stop taking orders from Rush Limbaugh?

      1. Are you, or have you ever been, a listener of the man who claims his talent is on loan from God.

        1. I listen to Rush every other day on my way to class. About a week or two ago, after Walkers Iowa speech, he started having regular Walker boosting sessions. Interestingly the Walker love fest got going in the comments here shortly after that…

          It’s hilarious. It reminds me if all the Cruz boosting that went on here back around the shutdown. It’s almost like a certain rather unequivocal libertarian from KY with an MD isn’t out there as a potential candidate…

    3. If I were a Republican mover or shaker I think that this should be a clear sign that Walker is the one to back. The Dems have pulled out all the stops trying to take him down and that this credentialist bullshit is what they are now reduced to should indicate that there probably won’t be any negative surprises moving forward.

      1. Let’s see he’s a Wisconsin Republican so he is no socon and he took down the Pubsec unions so he has right-wing cred…

        1. Yeah, the fellow who doesn’t believe in evolution, they’ll never hang the Socon label on him because he’s from Wisconsin!

          It’s like some collective delusion around here.

          1. I’d bet Obama believes in evolution. Fat lot of good that did all of us.

            “I Fucking Love Science” =/= knowing about science

            And believe is such a dumb word in this context. Its like asking if you believe in gravity. Evolution and gravity are simply the best or, perhaps, most-accepted, explanations for what we observe in the natural world. Whether or not you believe is immaterial.

          2. He did not say what he thought about evolution. Walker refused to answer a demand for an Auto De Fe on the subject.

            1. “Walker refused to answer a demand for an Auto De Fe on the subject.”

              Yup, no paranoid victimhood embracing here!

              They asked him a simple question, the kind that’s common for people seeking the kind of limelight Walker is seeking, and for which the answer should be easy for even a college drop out to answer, but fearful if offending some Bryanites in his base he cravenly and even literally punted instead.

              Scrape that barrel guys!

              1. Gotcha haymaker Pathogen here, reporting for MSNBC on Bo’s presidential campaign. Excuse me, Bo.. a question for you, do you believe that the male/female distinction is a physical, or social construct? smile for the camera.. it’s just a simple question..

              2. No, I meant the literal meaning of “Auto De Fe”, that is, “confession of faith”.

                I don’t think giving a metaphorical finger to the rotten presumptions behind that question was craven at all. That type of hackery needs to be mocked at every occasion.

                “When I hear people talk about science as if it’s something to “believe in,” particularly people who reject all sorts of science-y things (vaccines, nuclear power, etc. as discussed above), I immediately think of one of my favorite lines from Eric Voegelin: “When God is invisible behind the world, the contents of the world will become new gods; when the symbols of transcendent religiosity are banned, new symbols develop from the inner-worldly language of science to take their place.” This will be true, he added, even when “the new apocalyptics insist that the symbols they create are scientific.”

                In other words, the “Don’t you believe in evolution!?!” people don’t really believe in science qua science, what they’re really after is dethroning God in favor of their own gods of the material world (though I suspect many don’t even realize why they’re so obsessed with this one facet of the disco ball called “science”).” – Jonah Goldberg

      2. and that this credentialist bullshit is what they are now reduced to should indicate that there probably won’t be any negative surprises moving forward

        Well it worked on Bo.

        1. The fact that it worked on Bo implies that no normal human being could possibly give a shit.

          1. Yeah, who would care that your nominee for President of the United States has a resume that wouldn’t get him a callback at most management jobs in the country. I mean, what’s up with all those idiot businesses that say ‘bachelors degree required or preferred,’ don’t those fools know that Bill Gates dropped out of college?!?

            You guys want a white knight so bad you’ll settle on the first squire who blows you kisses.

            Here’s a thought: maybe find someone who stands for all the things Walker does AND, I don’t know, has an educational achievement that doesn’t make him an outlier among statewide office holders. Naw, you’re right, that’s crazy, let’s stick it to those elites with their fancy credentials and big words and scrape that barrel to the very bottom. Lol

            1. Judging by the quality, morality, and faithfulness to the Constitution we see in most statewide office holders, I think an outlier might be exactly what we need.

              1. By that logic we’ve yet to have a Down’s Syndrome statewide office holder. Why not pick one of those for the nominee? There’s one with a proven last name in conservative circles out there too! How old is Trig now?

            2. “I mean, what’s up with all those idiot businesses that say ‘bachelors degree required or preferred,…”

              I don’t know, resume entry of several successful years as CEO of subsidiary of the larger organization?

              No, couldn’t be, proven experience cannot possibly trump a properly sealed piece of sheepskin!

    4. You do get that this is about slashing and burning a path for Hillary, right?

      1. It’s this conspiratorial, victim hood mentality (the mean ol’ MSM is out to get us again) that is behind this. It’s common for groups that are convinced they’re oppressed and embrace that role to mire themselves in paranoia and eschew any normal self criticism. It’s why blacks resist criticizing figures like Sharpton: you don’t want to give ‘them’ ammo that might suggest your group is intellectually wanting. Success in education has become the ‘acting white’ of conservatives.

      2. I am rather enjoying watching the political class destroy itself for short term electoral gain.

        If they banded together, they could fool people into thinking that the nomenklatura were worthy of their offices. But in a manner reminiscent of the way some cartel member will invariably cheat for personal gain at the expense of the cartel, these people can’t resist tearing each other down.

  8. Well, why should any pol be concerned about my privacy, dear? I am but an insignificant and meaningless cog in their playing field- where business interests and powerful moneyed friends who can support the pol play like revolting communistic filth with my life’s details… There exists millions of us… records run a dime and connecting all that shit just makes the rich boys ever more vigilant…

  9. At some point those horrible fucking monsters in the swamps of congress might yet morph into enjoying the occasional fuckupery of being fucking fucked up… and then their fucking old style moronic shit brains might revert to new skool let us wake up and judge like ethical beings… and create laws that are based on ethics and common fucking sense… NOT fucking church, prog, or fear… COMMON FUCKING SENSE you fucking turd-chokers!

    1. Can you tell me about Anna Livia Plurabelle?

  10. accessing the content of their conversations would require the authorization of a judicial magistrate or judge

    So then they can’t just send a demand letter, it will have to be a rubber-stamped demand letter? That could cut down on their fishing expeditions by possibly as much as a fraction of one percent.

  11. Slightly OT from an earlier thread:

    Warty|2.13.15 @ 5:40PM|#

    My PRs are a 605 squat, 635 pull, 395 bench, 275 press, 365 power clean, and 245 power snatch.

    Pics of the 245 pound Puerto Rican with a power snatch, or it didn’t happen.

    1. What could be more ridiculous than an anonymous commenter on the internet bragging about how much they can squat?

      I mean, did I mention I drive a corvette, attend Harvard, am dating a Swedish model and am currently an UFC champion?

      1. Someone asked him, Botard, and he answered.

        Science, you have fucking “Esq” in your handle and you call someone else a braggart?

        You really are just all projection all the time, aren’t you?

        Truly pathetic.

        1. Only the tard should be the arbiter of who is worthy and who isn’t. So it is written.

        2. “ have fucking “Esq” in your handle and you call someone else a braggart?..”

          LOL.. brutal.

        3. Science, you have fucking “Esq” in your handle and you call someone else a braggart?

          Its better than that, even. “Esq” is used to identify actual licensed lawyers, not lawyer wannabes.

          Don’t refer to yourself as a “lawyer” or append “Esq.” to your name until you’ve successfully passed the bar.


      2. I’m 6′ 5″ on Facebook.

      3. Is this where Bo starts to be best buds with dunphy now? It’s been funny watching the mask slip as he defends and agrees with PB and Tony. His fear of the evil SoConz coming to get him is unhinging him completely.

      4. He’s not giving outlandish weights. Those are achievable by a person in good health, who works hard for several years. Those are weights a guy who doesn’t juice could be really proud of. I’m a very part time powerlifter and can dead 405 after warming up. It’s quite attainable.

    2. Damn. I guess them new Doomcocks? are heavy.

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  13. Wow thats kinda crazy when you think about it. Wow.

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