Remember that e-mail you got from your significant other six months ago \u2014 the one you read, replied to, and deleted? Probably not, but if it\u2019s still stored on a server somewhere, as it may well be, Uncle Sam thinks it\u2019s fair game for his agents\u2019 prying eyes \u2014 and they don\u2019t even need to get a warrant to sneak a peek.<\/p>\n
Under the Electronic Communications Privacy Act (ECPA) of 1986, electronic communications left on remote servers \u2014 \u201cin the cloud,\u201d in today\u2019s parlance \u2014 for more than 180 days are considered abandoned and therefore not protected by the Fourth Amendment\u2019s 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\u2019 computers for reading and storage. (The government must still get a warrant to search locally stored messages.)<\/p>\n
Today, however, the law simply doesn\u2019t 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.<\/p>\n
Nevertheless, that is the self-serving way the federal government interprets the ECPA to this day, helped along by the fact that, as CNET\u2019s Declan McCullagh put it, the law \u201cis so notoriously convoluted, it\u2019s difficult even for judges to follow.\u201d 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\u2019t decide differently.<\/p>\n
\u201cWe believe that it\u2019s crucial that such a thin reed not protect some of the most sensitive information we have,\u201d blogged Chris Calabrese, senior policy director for the Center for Democracy and Technology. \u201cAfter 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.\u201d<\/p>\n
Fortunately, a significant number of folks in Congress \u2014 who might well be on the receiving end of some of those complaints \u2014 are trying to secure Americans\u2019 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.<\/p>\n
\u201cThe government is essentially using an arcane loophole to breach the privacy rights of Americans,\u201d Yoder told McClatchy Washington Bureau. \u201cThey couldn\u2019t 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\u2019t think Americans believe that the Constitution ends with the invention of the Internet.\u201d<\/p>\n