Issue in Focus
Feb 06 2015
Americans are routinely bombarded with stories about invasive new surveillance technologies capable of encroaching on our online communications without notice. But the only law on the books to protect Americans’ private e-mails from warrantless searches by law-enforcement agents was written in 1986 – well before much of the technology we take for granted today even existed – and it has remained virtually unchanged ever since.
Almost 30 years ago, Congress enacted the Electronic Communications Privacy Act (ECPA) to protect the privacy of electronic communications. But at that time, no one could have imagined how the Internet and mobile technologies would transform the way we communicate and exchange information. There was no World Wide Web, no cloud computing, no smart phones, and no social media.
After three decades, it is time to update this law. There is no reason we should still be operating under a law written in the analog age when we’re living in a digital world. The prevalence of e-mail and the low cost of electronic data storage have made what were once robust protections in the law insufficient to ensure that citizens’ Fourth Amendment rights are adequately protected.
The Constitution guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But that guarantee is at risk when the government can search and seize vast troves of our private e-mails, texts, and social-media posts without our knowledge or consent – and without a search warrant.
Proposals like the ECPA Amendments Act would require the government to obtain a search warrant, based on probable cause, before searching through the content of Americans' e-mail or other electronic communications stored with a service provider such as Google, Facebook, or Yahoo!. The government is already prohibited from tapping our phones or forcibly entering our homes to obtain private information without warrants. The same privacy protections should apply to our online communications.