Monday, February 16, 2015
Remember that e-mail you got from your significant other six months ago — the one you read, replied to, and deleted? Probably not, but if it’s still stored on a server somewhere, as it may well be, Uncle Sam thinks it’s fair game for his agents’ prying eyes — and they don’t even need to get a warrant to sneak a peek.
Under the Electronic Communications Privacy Act (ECPA) of 1986, electronic communications left on remote servers — “in the cloud,” in today’s parlance — for more than 180 days are considered abandoned and therefore not protected by the Fourth Amendment’s requirement that government agents obtain a warrant before searching and seizing them. This might not have been so unreasonable in the era of eight-bit computers and 300-baud modems, when the cost of online time and remote e-mail storage was so high that most messages were downloaded to users’ computers for reading and storage. (The government must still get a warrant to search locally stored messages.)
Today, however, the law simply doesn’t make sense. Few people download e-mails or other electronic communications, such as text messages or private social-media posts, on a regular basis. Most are stored in the cloud for retrieval whenever, wherever, and by whatever means (desktop or laptop PC, smartphone, tablet, etc.) the parties to the communication desire. It is therefore quite unreasonable to assume that cloud messages over 180 days old have been abandoned and thus can be searched by the government on a whim.
Nevertheless, that is the self-serving way the federal government interprets the ECPA to this day, helped along by the fact that, as CNET’s Declan McCullagh put it, the law “is so notoriously convoluted, it’s difficult even for judges to follow.” The judges of the Sixth Circuit Court of Appeals in 2010 ruled that the government has to get a warrant to access e-mails, with the result that some data-storage companies have begun enforcing that rule themselves. But there is no guarantee that another court won’t decide differently.
“We believe that it’s crucial that such a thin reed not protect some of the most sensitive information we have,” blogged Chris Calabrese, senior policy director for the Center for Democracy and Technology. “After all, privacy in communications is central to our democracy. Journalists need it to talk to their sources, advocates need it to organize protests, and normal folks need the freedom to complain about their government without fear of retribution.”
Fortunately, a significant number of folks in Congress — who might well be on the receiving end of some of those complaints — are trying to secure Americans’ right to electronic privacy, at least to some extent. Senators Mike Lee (R-Utah) and Patrick Leahy (D-Vt.) recently introduced the Electronic Communications Privacy Amendments Act of 2015. Representatives Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) have introduced companion legislation in the House of Representatives.
“The government is essentially using an arcane loophole to breach the privacy rights of Americans,” Yoder told McClatchy Washington Bureau. “They 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.”
Full article: http://www.thenewame … -from-gov-t-snooping