Bill to Require Warrants to Read Old Emails May Be Dead

Senate amendments attempt to increase government snooping authority.


Sen. Mike Lee
U.S. Senate

The idea that police and prosecutors should have to get warrants in order to access and read citizens' old emails seems so obvious and mandated by the Fourth Amendment that nobody in the House of Representatives voted against The Email Privacy Act when it made it to the House floor in April.

It is nevertheless probably dead.

To explain: The Electronic Communications Privacy Act of 1986 established that stored communications held by a third-party provider were no longer subject to warrants after 180 days. It's a rule that seems crazy now, but it preceded a world where nearly everybody had home computers, easy Internet access, and permanent email storage. Privacy-minded legislators have been working to fix this loophole now that it clearly represents a significant violation of citizen communication privacy.

But it appears it is not in the cards. The House version passed 419-0. But when it got to the Senate, sponsored by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah), the amendment process happened and it looks like everything went to hell. Sen. John Cornyn (R-Texas) attempted to add an amendment that would expand the authorizations for the government to use National Security Letters (NSLs) to collect data about a target's internet browser history in secret and without warrants. So in legislation intended to safeguard citizen privacy from unwarranted snooping, a senator added an amendment to do the exact opposite.

As a result, Lee and Leahy have asked for the legislation to be pulled from the agenda, making its future unclear. On Facebook. Lee posted his frustrations:

A lot has changed since we have updated the laws that govern the privacy of our electronic communications. I challenge all of my colleagues in the Senate to talk to their constituents and try to find anyone who agrees that it is a good idea that their online communications should be private for only 180 days. I think they will struggle to find one person who agrees that online privacy should have an expiration date. I am disappointed that some members of the Senate Judiciary Committee killed a common-sense update to our privacy laws that passed the House of Representatives 419-0.

If you think what Cornyn's move was bad, Sen. Dianne Feinstein (D-Calif.) is even worse. Feinstein said she wouldn't have voted for it anyway. Why? Because there are some regulatory agencies like the Securities and Exchange Commission (SEC) that don't have the authority to serve warrants, and this rule could hamper their attempts to get information to use for civil actions. That is to say, Feinstein believes that individual civil liberties should be subservient to the convenience of government bureaucracies. No wonder she's on Reason's list of "45 Enemies of Freedom" and was ranked by readers among the 10 worst.