Matthew T. Mangino
February 13, 2015
Twenty-nine years ago, when Congress considered the privacy to be afforded electronic communications, the concept of the Internet, text messaging and electronic storage of documents was still the stuff of science fiction.
Today, 84 percent of U.S. households own a computer with access to the Internet, and 91 percent of Americans have a cellphone, according to Pew Research.
The media has been plastered with news of the data breach at Anthem were hackers stole names, Social Security numbers and other sensitive information from as many as 80 million customers. Americans are up in arms.
Yet few people know that the Electronic Communications Privacy Act of 1986 makes private information — emails, text messages and electronically stored documents — available to
law enforcement and the government six months after sent, received or stored.
The framers of the U.S. Constitution recognized that citizens in a democratic society have a reasonable expectation of privacy for their “persons, houses, papers, and effects.” However, today with a significant amount of “papers and effects” stored electronically, those protections secured more than two centuries ago have begun to erode.
The “180-day rule,” as it has become known, allows law enforcement officials to treat any emails, text messages or documents stored on remote servers — popularly known as the
cloud — as “abandoned” if stored for more than 180 days, reported McClatchy.
Traditionally, the U.S. Supreme Court has interpreted the Fourth Amendment as not providing privacy protection to property that has been abandoned. For instance, luggage at an airport that an individual refuses to claim or acknowledge ownership over — or garbage that is set at the curb — is considered abandoned and no longer afforded constitutional protection.
Can the same be said for an eight-month old email or document stored in the cloud? The Electronic Communications Privacy Act of 1986 was written at a time when the breadth of electronic communication had not yet been fully contemplated.
Congressman Kevin Yoder, a Republican from Kansas, is leading an effort in the House of Representatives to update the law.
“They [police] couldn’t kick down your door and seize the documents on your desk, but they could send a request to Google and ask for all the documents that are in your Gmail account. And I don’t think Americans believe that the Constitution ends with the invention of the Internet,” Yoder said in a statement.
Yoder’s Bill has bipartisan support. He has partnered with Congressman Jared Polis, a Colorado Democrat in the House and Senators Patrick Leahy, D-Vt., and Mike Lee, R-Utah, in the U.S. Senate.
If passed into law, the legislation would protect the confidentiality of electronic communications described in the current law and prohibit the government from seeking or forcing disclosure of digital communication content without a warrant issued by “a court of competent jurisdiction directing the disclosure.”
In other words, law enforcement would have to show the court there is sufficient proof to obtain a warrant based on probable cause.
Some states are not waiting for the federal government to take action. Yoder introduced the same legislation last year with more than half of the House signing on as co-sponsors. The bill never made it to the Judiciary Committee for consideration.
In California, legislation was recently introduced that would prohibit warrantless law enforcement access to emails, text messages and electronically stored documents. Sponsored by State Sen. Mark Leno, the legislation known as the California Electronic Communications Privacy Act, would require law enforcement to obtain a warrant before accessing an individual’s private electronic communications.
Amending the federal Electronic Communications Privacy Act is not without opponents. Law enforcement and administrative agencies argue that the new restrictions will make it difficult to fight crime and terrorism.
The Securities and Exchange Commission was largely responsible for stopping the passage of a bill during the previous legislative session, according to the Personal Liberty Blog. As a civil regulatory agency, the SEC lacks the power to obtain a search warrant and relies on subpoena power to enable email reviews in its investigation of corporate wrongdoing and insider trading.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, “The Executioner’s Toll, 2010,” was released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.
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