After a litany of startling revelations about the National Security Agency’s bulk collection of email and more, most Americans will be surprised that their electronic communications are in some ways more vulnerable to snooping by garden-variety government officials. A woefully outdated law allows agencies ranging from local district attorneys’ offices to the IRS to pore over the contents of emails without seeking court approval.
The law governing email access dates back to the primordial age of the technology, in 1986, when the few who used it had to download messages onto their gigantic home or office computers. While that made the legislation forward-looking in the era of neon and leg warmers, lawmakers could not have anticipated email’s evolution into a ubiquitous form of interpersonal communication largely stored by third parties such as Google and Microsoft. So the law leaves email kept by providers for more than 180 days — unusual then but standard today — subject to searches without a warrant. That means law enforcement and regulatory agencies can subpoena email from providers without demonstrating probable cause to a judge or notifying users.
Some major agencies and email providers have said their policy is to require a warrant for such searches anyway. But the Securities and Exchange Commission is actively opposing efforts to prevent warrantless access. And it’s difficult to know how often state and local authorities take advantage of weak email protections.
Fortunately, in spite of the SEC’s rearguard campaign, a bill that would bring email privacy into the 21st century is gaining momentum in the House. With a broad coalition of supporters ranging from the American Civil Liberties Union to Americans for Tax Reform, the Email Privacy Act has 200 co-sponsors from both sides of the aisle.
Congress and President Obama have failed to balance Americans’ privacy rights with the national security imperatives said to be served by the NSA’s dragnet. Protecting email from unwarranted searches by civil and criminal authorities should be easy by comparison. Acid-washed jeans may have made an unlikely comeback, but this legal artifact of the â80s should be consigned to history.
Editorial by the Philadelphia Inquirer