Warrants

Fourth Amendment Protections for Emails Inch Forward in Congress

Legislation would require warrants for old communications.

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You'll need somebody who can read Russian to get through the spam.
Credit: Gaemau | Dreamstime.com

There is a big, huge gap in your Fourth Amendment protection against government searches without a warrant that goes all the way back three decades. That's when Congress passed the Electronic Communications Privacy Act of 1986, which like many laws, somehow managed to do the opposite of what it is named. This was not necessarily on purpose (for once), but rather a failure to predict how email and digital communications would ultimately become Americans' primary method of talking to each other.

The Electronic Communications Privacy Act treats all emails stored by a third party provider as "abandoned" after 180 days and allows for law enforcement agencies to gain access to the contents without having to get a warrant. At the time, third party providers weren't actually storing emails for long periods. Now they are.

Starting in 2013, a bipartisan coalition of privacy-oriented members of Congress have been attempting to get legislation passed to fix gaps in Fourth Amendment protections for electronic communications. Obviously it hasn't happened yet, but this week one bill, the Email Protection Act, has been given clearance to take a step forward. House Judiciary Committee Chairman Bob Goodlatte (R-Virginia) announced this week that the Email Protection Act will go through the "markup" phase in March, which would allow it to move forward to a possible floor vote.

The House legislation, sponsored by Reps. Kevin Yoder (R-Kentucky) and Jared Polis (D-Colorado), is very popular among members of Congress. It has 308 co-sponsors. The Senate's version of the bill, sponsored by Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vermont) made it through the Senate's Judiciary Committee last year but has not had a floor vote.

Yoder and Polis have both put out statements indicating hope that the legislation will get through the markup and out to the House floor for a vote. Polis, whose pre-congressional career revolved around tech commerce startups, sent out a statement:

"The last time our email privacy laws were updated, I was a sixth-grader and playing computer games meant inserting a floppy disk into an Apple II. As a result of Congress's failure to keep pace with technology, every American is at risk of having their emails warrantlessly searched by government agencies. I'm thrilled the Judiciary Committee will finally markup the Email Privacy Act, so that we can finally update this archaic law and ensure that Americans' Fourth Amendment rights are protected whether they're communicating through email, on the phone, or through the mail. I'm confident that once the bill is allowed to proceed to the House floor, it will pass with overwhelming support from both parties."

There are some potential problems, though. Law enforcement officials and the Department of Justice want the new law to have an exception to force Internet companies to turn over customer data in the event of an "emergency" without having to get a warrant first. The Hill notes that Google and privacy experts say the exception isn't necessary and could bring privacy and security problems, and a Google representative pointed out that some officials will declare that it's an emergency simply because they don't want to have to deal with the hassle of getting a legitimate warrant. And agencies like the Securities and Exchange Commission, who don't have warrant authorities, want carve-outs so that they can get access to third-party communication data from Internet providers.

Goodlatte claims to be supportive of the emergency exemption at least, so we'll have to keep an eye out on what happens to the text of the Email Protection Act once it hits the markup session in March.

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  1. If at the end of all of this the Email Protection Act doesn’t end up giving federal authorities unfettered access to your email I’ll be sorely dissapointed.

    1. (Just like I am currently in my spellcheck.)

    2. It’s named the Email Protection Act, what else do you want?

  2. You must have been Russian when you proof read your comment.

    1. He already blamed his spellczech.

  3. Snowden has given us the evidence that it doesn’t matter what the law says. The government will be reading all email.

    1. Who are you going to believe, some high school dropout living as a guest of Vladimir Putin or the professionals you elected to represent your interests?

      1. That depends. How much money has Raytheon given to Snowden’s political campaign? What’s that? He doesn’t have a political campaign?

    2. Yeah. At this point, since I see no one, ever, being jailed for breaking any of the supposed “protections” the populace is supposed to have, I have to assume that they will just do whatever the fuck they want seeing as there are no consequences.

      I mean…look at the incentives. They’re going to do whatever the fuck they want.

      1. It’s possible, a law like this might keep your emails out of a trial based on the 4th amendment. But after the government has decided you’re a criminal or terrorist from reading your email, they’ll just go find other evidence to present at your trial or secret tribunal. They’ll never need to mention they read your email.

        1. Parallel construction, bitch.

          1. sad that this practice does not get more focus.

        2. Well, it was an “emergency”. They had to read those emails! And don’t ask what the emergency was, because they forgot.

          1. It’s emergencies all the way down.

      2. At this point, since I see no one, ever, being jailed for breaking any of the supposed “protections” the populace is supposed to have, I have to assume that they will just do whatever the fuck they want seeing as there are no consequences.

        I just took this a step deeper.

        So the Founders set up a Constitution to limit government. In it they provide for a framework in which legislators can pass laws to fill in the gaps, provided those laws don’t violate the framework. Executive enforces those laws and Judicial doles out the punishment (talking in theory, here).

        Isn’t it telling, that all of the laws that the legislatures passed apply to the people? Why hasn’t the legislative branch ever put forth any laws that provide punishment for government violations of the framework? For instance, a government representative who is found to have violated a citizen’s freedom of speech is subject to between 2 and 4 years in a federal prison…

        It’s odd interesting they didn’t start there and that 230+ years later, no one has even questioned this obvious oversight.

        1. That’s depressing as hell. Illuminating, but depressing. Thanks.

        2. It isnt an oversight Francisco. It is a deliberate omission.

    3. The government jobs program known as the NSA is going to let go how many slugs if this goes through? I am sure BO will sign it into law post haste.

  4. Why do we need an extra law to tell the government to follow the Constitution? Isn’t the Constitution supposed to trump (lower-case t) any law? As exiled American Hero Edward Snowden showed us, the mosquitos in government don’t follow their own laws in government anyway.

    1. Why do we need an extra law to tell the government to follow the Constitution?

      No, but perhaps we need/needed law to punish those who don’t. We never got it.

  5. Law enforcement officials and the Department of Justice want the new law to have an exception to force Internet companies to turn over customer data in the event of an “emergency” without having to get a warrant first.

    I’m sure that will never be abused.

    1. It is always an emergency if those in political power are afraid they might lose political power. It was an emergency when Nixon thought he might lose an election and his staff broke into the Watergate hotel.

  6. Scott, Jared Polis is from Colorado.

    1. That’s what it says. [Nonchalantly walks away whistling like nothing happened]

      1. Oh yeah. You get to edit stuff, but what about us?

        I demand some fairness in editing!

        What do we want? EDIT BUTTON! When do we want it? NOW!

        1. Can you imagine Tulpa or John with an edit button? It’d be a shitstorm. If you got one you’d need to be able to access original content to pin down the trolls.

          1. It’d be a shitstorm.

            Simple solution: only allow “minor” edits and disable editing after a reply has been posted. Or after P. Brooks posts something.

          2. If you got one you’d need to be able to access original content to pin down the trolls.

            Do like everyone else, 5 minutes to edit until comment is permanent.

        2. EDITING INEQUALITY!!11!!!1!!!!!

  7. This is one of those deals where supporting the idea of extending Constitutional protections to your electronic communications sounds good – except for the implicit admission you have to make that the Constitution doesn’t already cover your electronic communications. This whole “third party” crap has got to go.

    1. Are the items in your safe-deposit box at the bank “abandoned” after 180 days? Are they subject to warrantless search? If not, why not?

  8. The Electronic Communications Privacy Act treats all emails stored by a third party provider as “abandoned” after 180 days and allows for law enforcement agencies to gain access to the contents without having to get a warrant

    Remember kids, if it’s not on a hard drive, on a computer that you own and control, you don’t own the data. You may legally own the data, but that’s gonna be pretty thin gruel after government perverts have already combed through it.

  9. Goodlatte claims to be supportive of the emergency exemption at least, so we’ll have to keep an eye out on what happens to the text of the Email Protection Act once it hits the markup session in March.

    Goodlatte is a quisling. And we all know what will happen once it hits markup: the exceptions and carveouts will be broad enough for business as usual to continue, while the politicians pat themselves on the back and pretend to have accomplished something.

  10. plums

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