Imagine coming home to local law enforcement and federal officials from the IRS, DEA, and a host of other agencies going through your house, taking photographs and emptying your drawers. You ask what's going on and demand to see a warrant, only to be told they don't have one -- they've only got a subpoena, which doesn't require probable cause or a judge's approval.
Thankfully, this hypothetical situation is prevented by the Fourth Amendment, which enshrines "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." If law enforcement was routinely searching people's homes and possessions without warrants, many politicians -- especially the more liberal members of the Democratic Party -- would rightly be outraged, and would likely push for sweeping reforms.
Yet that same scenario is quietly playing out online, unbeknownst to those being searched. Because of loopholes in the Electronic Communications Privacy Act (ECPA), a law last updated in 1986 when "the cloud" was the stuff of science fiction, there are gaping cracks in the warrant requirement for digital communications like email and cloud storage. While police need a warrant to search files on your home computer, a subpoena is sufficient for identical files you have stored on services like Google Drive or DropBox. The same goes for emails you've already opened or ones you've left unopened for over 180 days, meaning all are eventually vulnerable.
Even worse, ECPA currently allows law enforcement to access all sorts of metadata without obtaining a warrant. This includes IP addresses, dates and times of calls, contacts' phone numbers and email addresses, and your cellular location data. While this may seem less egregious than accessing emails' contents, given the immense power of location data and former NSA Director Hayden's recent statement that "We kill people based on metadata," the importance of this sort of snooping should not be discounted. And this type of collection isn't rare: police asked for cell phone data over one million times in 2012.
A bill to fix all of this is currently working its way through Congress, but surprisingly, Democrats have been slow to support it and are allowing Republicans to claim this issue as their own. The Email Privacy Act (HR 1852), introduced by Rep. Kevin Yoder (R-KA), is now sponsored by 211 Representatives -- 136 Republicans and 75 Democrats. While they are outnumbered in the House, that's still only 39 percent of Democrats compared to 58 percent of their Republican counterparts. Why is the Democratic Party, traditionally more supportive of civil liberties than the GOP, dragging its feet on one of the most important privacy issues of our time?
The loudest opponent of reform is the Securities and Exchange Commissions (SEC), which is demanding a carve-out to allow it to continue exploiting ECPA's loopholes to obtain information without a warrant. The White House had long remained silent on this issue, but is finally throwing its weight behind reform. While President Obama has still not responded to the 100,000+ Americans who signed the We the People petition demanding ECPA reform (it's been 152 days -- for comparison, a petition to build a Death Star got a response within 29 days and one to deport Justin Bieber within 54), a recent White House report on Big Data recommended Congress "amend ECPA to ensure the standards of protection for online, digital content is consistent with that afforded in the physical world -- including by removing archaic distinctions between email left unread or over a certain age."
Hopefully, this new endorsement will help congressional Democrats understand the dire need for ECPA reform. Some are already working to get the rest of their party on board, with Rep. Jared Polis (D-CO) signing on as one of the bill's three main sponsors. New sponsors from both parties have been trickling in, but 7 more are still needed to reach the magic number of 218, a definite majority that would speed the bill's progress through the legislative process and help it reach a floor vote.
Surely 7 of the 118 Democrats yet to sponsor the Email Privacy Act believe in Americans' right to privacy in the digital world, and even more must realize the political fallout if they allow the GOP to become the uncontested party of civil liberties. Whatever your party affiliation, if you think emails deserve the same Fourth Amendment protections as snail mail, please use the tools at VanishingRights.com to ask your Representative to sign on.
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