Big Brother is Watching

The Government and anyone else with the right technology can read your emails even if you are not a terrorist, a spy or a suspect in a crime.  That is because the privacy law for electronic communications dates back to 1986 and drastically needs an update.

The Electronic Communications Privacy Act was implemented in the early days of the Internet. As a result, it fails to address the realities of modern email use and new social media technologies like Twitter. For instance, under the ECPA, opened emails that are stored on a provider’s server for more than 180 days are deemed abandoned and do not require a warrant. Thus, they are not afforded the same privacy protections as emails stored on a home computer or documents kept in a file cabinet.

Because email providers like Google and Yahoo now store user emails on the cloud indefinitely, government officials can gain access to a wealth of information without having to show probable cause. In fact, in many cases, officials can obtain the emails without any court involvement by simply issuing a subpoena.

In a rare show of solidarity, over 50 businesses and organizations, ranging from tech companies to political groups, recently sent a letter to Congress urging lawmakers to pass a proposed amendment to the ECPA. The bill, sponsored by Senators Patrick Leahy (D-Vermont) and Mike Lee (R-Utah), would require government agencies to obtain a warrant prior to accessing access any electronic communications stored on third-party servers, regardless of the date of receipt.

“American consumers and businesses large and small are increasingly taking advantage of the efficiencies offered by web-based email servers and cloud-based storage and computing,” the letter states. “Removing uncertainty about the level of legal protection afforded such information will encourage consumers and companies, including those outside the U.S., to utilize these services.”

The letter also argues against the Securities and Exchange Commission’s request for an exemption from the law’s requirements. While the SEC argues that it would be impractical to obtain a warrant/subpoena in every case, the signatories argue that providing the SEC with special treatment would set a dangerous precedent.

“The SEC proposal would turn that process on its head,” the letter says. “If a civil regulatory agency could serve process on the target’s communications service provider, the provider would be forced to turn over all of the information in the target’s account, even if irrelevant to the subject of the investigation or legally privileged.”

 Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.