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?”
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Reagan in 1986) was intended to provide a high degree of protection for electronic communications, it is woefully outdated and inadequate.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.
A major reason the legislation has not yet gained the widespread support one would expect is that most Americans do not realize how easy it is for the government to access their private communications or use electronic devices, including cell phones, to secretly track their whereabouts and movements. This is why the Digital Due Process Coalition — a broad coalition of business and privacy groups, including Google and Facebook — is supporting changes to the ECPA to provide a greater, but reasonable, degree of legal protection for such communications, such as contained in Leahy’s bill.
These concerns are not new; in fact, I introduced a similar proposal back in 2000 as a member of the House Judiciary Committee. That bill passed the committee with bipartisan support, but the Republican leadership at the time did not bring it to the full House for a vote.
In this digital age, it makes no sense to provide less protection against unreasonable government snooping for messages sent through electronic devices than we provide for letters sent through the mail. Hopefully, Congress will move into the 21st century and amend ECPA along the lines of Leahy’s legislation. The Fourth Amendment to our Bill of Rights demands it, and so should the citizenry.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.