Think your emails are private? Think again

Ask the average citizen if he thinks his emails and Facebook messages to friends and family members are protected from government snooping, and he’d likely answer, “Sure, the government would have to obtain a warrant before it could go snooping into my personal communications, the same as it must have a good reason to open my physical mail, right?”

Wrong.

Even though far more messages are sent electronically than are sent by “snail mail” (much to the chagrin of the U.S. Postal Service), that snail mail enjoys far more protection from government’s prying eyes than an email or personal Facebook message. This is an anomaly that I and many others — including Facebook, Google and other companies and privacy groups — are working to change through federal legislation. But it’s tough to get members of Congress to pay attention.

The problem is that the degree to which the government can demand access to a person’s “electronic communications” (which include emails, Facebook messages and all other communications sent by phone or computer) is governed by a law that was enacted when the World Wide Web was still in its infancy. The law is the 1980s-era Electronic Communications Privacy Act (“ECPA”), and despite the fact that the law (which was signed by President Reagan in 1986) was intended to provide a high degree of protection for electronic communications, it is woefully outdated and inadequate.

Unfortunately, this administration, like its predecessors, favors the current situation, precisely because it makes it so easy for law enforcement to access those private communications without having to secure a warrant, as normally would be required by the Fourth Amendment.

Under ECPA, for example, once a person opens an email, the government can consider it fair game and can access it based on nothing more than a subpoena issued by a law enforcement officer to a service provider, without ever having to establish probable cause suspicion that the person sending or receiving it has done anything wrong. Moreover, because ECPA was passed long before “cloud computing” existed, and in an era when emails were considered “abandoned” if they were stored on a server for more than 180 days, electronic messages kept by a person on their personal electronic device or in the “cloud” now are susceptible to easy, warrantless surveillance by the government.

Thus, the tens of millions of email messages, personal Facebook messages, Google searches and other private communications that Americans make every day enjoy virtually no protection from government snooping. It is this situation that legislation currently sponsored in the Senate by Pat Leahy (D-VT) would remedy. This legislation (S. 1011) would simply require that before the government could surreptitiously access such communications, it would first have to secure a warrant showing it suspects the users to be engaged in illicit activity. The legislation would also require the government to get a warrant before it uses cell phones or other personal communications devices to track a person’s whereabouts and movements.

Importantly, Leahy’s bill provides reasonable exceptions for national security and emergency law enforcement needs. Still, it is opposed by the Department of Justice and thus far has gained little traction in Congress.

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