The Fourth Amendment’s Digital Update

REUTERS/Kacper Pempel

Mitchell Gunter Freelance Writer
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The Fourth Amendment has protected our right to privacy since its ratification in 1791. The text of the amendment reads, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” but how well do these protections hold up in the digital age?

Today, most of us are typing emails on our laptops, not scribbling a letter with a quill and inkwell. Therefore, it’s important to ensure our sensitive, digital communications are well-protected. Clearly, the Fourth Amendment transcends time and technological change, but some sinister players are pretending otherwise.

Currently, under the Electronic Communications Privacy Act (ECPA), the United States federal government may seize any citizens’ private email communications without a warrant, provided they are over 180 days old. By law, these older emails are not considered privy to a reasonable expectation of privacy under the ECPA’s Section 2703(a).

Even worse, the ECPA was enacted in 1986, years before email usage was even widespread. However, the 180-day rule doesn’t just apply to emails—every American’s texts, GroupMe chats, and Facebook messages are fair game too.

It’s time to modernize the Fourth Amendment to protect our online communications, and bipartisan The Email Privacy Act, re-introduced by Reps. Kevin Yoder (R-KS) and Jared Polis (D-CO), does just that. Namely, the Email Privacy Act would require all government agencies to acquire a warrant before accessing any online communications over 180 days old—just like any other private documents.

In the era of cloud technology, communications could be stored on enormous server, conceivably forever. More and more, our sensitive financial, relational, and personal details exist online, making their security absolutely essential.

The ECPA is problematic in other areas as well. In December of 2013, federal law enforcement sought a search warrant for Microsoft customer’s email account as a component of a criminal narcotics investigation. Microsoft complied up until a point, but there was one big problem—the actual emails were stored overseas.

Microsoft refused to turn the emails over, and was held in civil contempt by the district court. Three years later, however, the Second Circuit Court of Appeals ruled against the federal government, expressing that companies cannot be compelled to release customer emails stored outside the United States.

“We conclude that § 2703 of the Stored Communications Act does not authorize courts to issue and enforce against US‐based service providers warrants for the seizure of customer e‐mail content that is stored exclusively on foreign servers,” the court ruled.

The International Communications Privacy Act (ICPA) is one potential solution to this issue, creating, “a legal framework that clarifies the ability of law enforcement to obtain electronic communication of U.S. citizens, no matter where the person or the communications are located.”

Additionally, the ICPA would allow law enforcement to obtain communications from foreign nationals, in consistency with international law. Sponsored by Senators Orrin Hatch (R-UT), Chris Coons (D-DE), and Dean Heller (R-NV), the bipartisan legislation would remedy this complex problem.

“The International Communications Privacy Act aids law enforcement while safeguarding consumer privacy, striking a much-needed balance in today’s data-driven economy,” Senator Hatch stated. Clearly, Americans can no longer be complacent about their privacy protections. In a digital age of prying eyes, the consequences of privacy violations can be costly, and long-lasting.

On June 23rd, the Department of Justice applied to take the Microsoft case to the Supreme Court, but Congress shouldn’t wait for the court to take action. Passing the ICPA and other meaningful reform is too important to wait, when innocent Americans are being caught in the crossfire.

One way or another, it’s time to give the Fourth Amendment a sorely needed update.