If the police want to read your email as part of an investigation now, they can just go to Google or other host sites with a subpoena and without telling you. But if proposed legislation approved Thursday by the Senate Judiciary Committee becomes law, officers will need a search warrant first.
The committee overwhelmingly approved the measure. Sen. Patrick Leahy (D-Vt.) amended H.R. 2471 to update the Electronic Communications Privacy Act, which was enacted in 1986 with telephone conversations in mind. The 1986 law doesn’t address the digital world of emails, text messages or Facebook communications. And H.R. 2471 didn't address online messaging but proposes consent rules for site providers to share customer's online video viewing information.
Leahy’s proposal would require a search warrant before the government can access emails, and would mandate law enforcement to notify the person being investigated within 10 business days with a copy of the warrant. However, the amendment would not change counterterrorism laws, such as the “Wiretap Act” that creates an exception in the case of national security situations or other emergencies.
“Like many Americans, I am concerned about the growing and unwelcome intrusions into our private lives in cyberspace,” Leahy said during Thursday's legislative mark-up that shows the changes the committee wants to make. “I also understand that we must update our digital privacy laws to keep pace with the rapid advances in technology.”
The law needs to be updated to keep up with technology, said Jim Dempsey, vice president for public policy at the Center for Democracy and Technology, a nonprofit that promotes Internet freedom.
“The law is clear that for the government to intercept your telephone conversations requires a warrant issued by a judge, for the government to open your postal mail requires a warrant from a judge,” Dempsey said. “The status of your e-mail in storage is unclear and that’s what we believe needs to be clarified and have the same protection as we have for telephone conversations and postal mail.”
Charisse Castagnoli, an independent security consultant and adjunct professor of law at John Marshall Law School, agreed that the current law is outdated. For example, one current rule states that government authorities only need a warrant for emails that are 180 days old or less.
“It’s not at all connected to any rational metric I can think of,” Castagnoli said. “Storage is basically free nowadays. You can store years of communication on a free 20GB server, so what is this strange number of 180 days?”
According to Dempsey’s testimony before the House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties in May 2010, Congress thought a service provider would not keep emails older than six months, so an account can be assumed to be abandoned after that time. Leahy’s amendment would eliminate the 180-day rule.
Castagnoli said it will take time before the legislation makes it to law, because the competing interests of privacy and law enforcement are hard to balance.
For example, 39 states ban texting while driving, and an officer at the site of an accident might need to access a cell phone to check what the driver was doing at the time.
“Just like you have your breathalyzer and drug tests for intoxicated drivers," Castagnoli said, "should law enforcement be able to test your digital devices to determine if you were a distracted driver and therefore contributing to a traffic accident?”
Last April, the American Civil Liberties Union filed a Freedom of Information Request to Michigan State Police about the use of data-extraction devices for cell phones. These devices can immediately download cell phone data such as call records, messages and images. Some police departments in Illinois received similar technology this November, as reported by the law enforcement media site Officer.com.
It would be more useful for lawmakers to think about the ways people use their data, and what is a reasonable expectation of privacy in an online digital environment, Castagnoli said.
“If you think about the question that way and think about how we deal with and handle our data, we would create a more lasting approach to what requires a warrant and what doesn’t,” Castagnoli said. “What I tell my young friends and my children is, assume that anything that you send off your private computer and your cell phone is public, pervasive and permanent.”