Over 250 years ago, courageous colonists took up arms and defended the right against unlawful search and seizure in the American Revolution. Fueled by outrageous searches by British law enforcement, our founding fathers enshrined within our constitution the Fourth Amendment, which reads, in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
Sadly, government lost its way between then and now, spying on private information that it shouldn’t see. At the dawn of the internet era, Congress passed the Electronic Communications Privacy Act (ECPA), a law establishing privacy protections for digital communications. But the law was written well before most people even knew what email was. Written for the technology of its time, ECPA permits warrantless search of stored electronic communications that are 180 days old. At that point, barely any electronics had high-memory capacity to store information like email does, so it wasn’t particularly egregious to assume old communications were abandoned. It’s a totally different story today, where email and digital communications have moved to the cloud, which has become the standard for data storage.
Senators Mike Lee (R-UT) and Patrick Leahy (D-VT) want to upgrade this archaic privacy-breaching law with the ECPA Modernization Act. This bill would erase the 180 days exception for law enforcement searches of electronic communications and replace it with the constitutional requirement of probable cause and a warrant. If the government obtains an individual’s communications through a third party provider, it must send a copy of its warrant to said individual within ten days. Without a warrant, law enforcement would have zero access to private electronic communications.
The bill also establishes the same privacy protections for third-party geolocation information, an area left wide-open by existing law. Third party companies servicing devices and programs that track your location such as cell phone carriers or Snapchat will only provide geolocation information upon receiving a warrant. The person whose location is sought will be notified by mail within ten days.
Occasionally, law enforcement claims that notifying the intended target of a warrant or criminal investigation could compromise effectiveness. For example, a suspect could destroy relevant records and evidence for a crime if they know that they are being targeted. Under existing law, law enforcement can request a “gag order” that stops a suspect from receiving a warrant notice. The ECPA Modernization Act would require law enforcement to provide specific facts proving that a gag order is necessary, a more stringent standard.
Government’s respect for privacy has diminished over time, especially for electronic communications. The ECPA Modernization Act would ensure that Americans enjoy the same Fourth Amendment protections for digital communications as they do in the physical world.