November 26 2012
Unwarranted Intrusion: Your Email is Next
Only in the upside-down, Orwellian doublespeak of Washington would proposed federal legislation boasting “enhanced privacy protections for American consumers” actually reduce privacy protections. A law proposed by Senator Patrick Leahy (D-Vt.) would have done just that.
Email, mobile phones, cloud computing and social networking all provide opportunities for privacy to be invaded. While many things on these devices might not be illegal, they certainly can be embarrassing. The fourth amendment guaranteed that government agents would not be able to go on fishing expeditions into our private lives without good reason.
Sen. Leahy sought to revise the Electronic Communications Privacy Act of 1986 (ECPA) with the effect of reducing the privacy standards enshrined by the fourth amendment to our Constitution.
Under current law, law enforcement agents need a warrant supported by probable cause before they can search the hard drive on your home computer or tap your phones. Why should email be treated differently?
Individuals and companies continue to push for reform of ECPA to reflect the new technological realities and our continuing expectation of privacy in communications.
At the behest of law enforcement groups, Leahy reworked an earlier version of the legislation to give over 22 federal agencies the right to search your email or similar communications with only a subpoena and not a warrant supported by probable cause, according to CNET’s Declan McCullagh.
“There is no good legal reason why federal regulatory agencies such as NLRB, OSHA, SEC, or FTC need to access customer information service providers with a mere subpoena,” a legal expert told CNET. “If those agencies feel they do not have the tools to do their job adequately, they should work with the appropriate authorizing committees to explore solutions.”
Leahy’s proposed law would have allowed almost everyone short of the DMV to scour your emails: the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, and the Mine Enforcement Safety and Health Review Commission.
The proposed amendments also grant state and local law enforcement agents the power to search email or similar communications stored on closed systems, including those of universities. They are not required to have a warrant for this.
Leahy has since backed down, withdrawing his support for the misbegotten proposal. Score one for personal liberty.
This time around.