Though most Americans may not be aware of the 1986 Electronic Communication and Privacy Act (ECPA), what it authorizes should scare them, along with civil libertarians across the political spectrum. Under the law government entities
[m]ay require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days.
Put simply, if your email sits in the cloud, or on a third party’s email server (such as it would be with a Gmail account), the government may legally obtain its contents after six months. In an age of ubiquitous digital communications, there is no reason why the conversations we have in cyberspace should be any less protected by the basic constitutional protections afforded our physical “papers and effects.” The Framers placed these constraints on law enforcement in our founding document because they knew, as we still know today, that giving the government carte blanche to invade our privacy without cause or due process is a recipe for transmogrifying our republic into something more akin to an Orwellian-Kafakaesque surveillance state where everyone is presumed guilty until proven innocent.
Although originally written in an era predating mass email and social media, the ECPA nonetheless continues to apply in the modern digital age. As privacy advocates at the Center for Democracy and Technology have noted, “This outdated law creates bizarre results for the digital age: law enforcement needs a warrant to obtain physical papers in a drawer or files on a computer hard drive, regardless of age, but only a subpoena to obtain online messages and documents held in the ‘cloud’ that are older than six months.” To be clear, a subpoena is a legal writ that merely compels the production of a piece of evidence (in this case, email or social media communications), whereas a warrant is a legal writ that actually permits law enforcement, or other entities, to perform an otherwise illegal activity (such as a search or seizure of private property) that would be considered a violation of an individual’s rights.
This morning, in a piece I penned for Watchdog Arena, I lay out the concerns associated with exempting civilian federal agencies from the reforms proposed for ECPA’s warrant requirements. For reasons ranging from clear violations of due process, to the potential for abuse, to the government’s poor track record in securing its own networks from theft of personal information, ECPA reform must not permit exemptions for civilian federal agencies. If law enforcement should have to obtain warrants for our online communications, so too should the IRS, SEC, EPA, and any other such agency, especially in light of the abuses that can occur under their administration.
For these reasons, the Niskanen Center has joined the Digital Due Process coalition in advocating the modernization of surveillance laws so that they may keep pace with both the Fourth Amendment’s protection against “unreasonable searches and seizures” and the rapid and positive changes associated with a freer, more-connected, more-digital world.