Issue in Focus
If a law-enforcement agency suspects that you have committed a crime, it must go before a judge and obtain a warrant in order to have the right to listen to your phone calls.
But thanks to a woefully outdated federal law – the Electronic Communications Protection Act (ECPA) – those same law-enforcement agencies do not need a warrant to read your emails. All they have to do is wait 180 days from when you sent an email and then tell whichever third party handles your account (like Gmail or Yahoo) that the correspondence is relevant to an ongoing criminal investigation. That’s all it takes for the FBI, CIA, NSA, and a host of other law-enforcement agencies to gain access to your email account. And this can occur without you even knowing.
This is an affront to American values and a violation of the Constitution’s Fourth Amendment.
At the time ECPA was created in 1986 – way back when desktop computers weighed more than a desk and floppy disks were actually floppy - electronic communications were still in their infancy. Little, if any data, was ever saved for very long, so it seemed sensible to write the law in a way that gave government agencies warrantless access to “abandoned” digital records.
But the world has changed a lot since 1986. Thanks to low-cost electronic data storage, virtually everything we do online now is recorded forever. And more to the point, to an extent unimaginable in 1986, our personal and professional lives today are conducted through – and therefore captured by – our email correspondence. (Just ask Hillary Clinton.)
So it is long past time to modernize ECPA and ensure that our constitutional protections against warrantless search conform with the technological realities of the 21st century. And that is exactly what would happen under the Electronic Communications Privacy Act, which passed the House of Representatives 419-0 on Wednesday.
Under the Electronic Communications Privacy Act, law-enforcement agencies would still be able to use subpoenas to acquire from electronic-communications firms routing information, customer names, session-time records, and other non-content information that they may need to conduct an investigation. But the private content of our emails and other personal electronic files would be protected.
The Electronic Communications Privacy Act is a commonsense reform that can help prove to the American people that our federal government still works. The Senate should take up this legislation soon.