If you're reading this article, chances are you have an email account. You might even have more than one. You probably also have a Facebook page and are listed on LinkedIn. And, if you're like me, you've saved lots of old emails relating to, among other things, your love life, your doctor and medications, and every book, iTunes song or sex toy you've ever bought online.
Guess what? The government can get copies of most of those emails without telling you. Just ask David Petraeus, the former CIA Director and celebrated U.S. Army General. Scared? You should be.
The Electronic Communications Privacy Act of 1986 provides the means by which the FBI, the SEC, the Department of Homeland Security and a whole host of other governmental agencies can access your private electronic communications. Among other things, it says that the government can acquire copies of anyone's email without giving notice to the "subscriber or customer" if it gets a warrant and the emails are more than six months old.
Unfortunately, this law, like many others relating to digital communications, hasn't kept up with rapidly advancing technologies and the way people use them. Still, bedrock constitutional principles relating to privacy shouldn't be diminished just because those advances exist and have outpaced the law. As Supreme Court Justice Sonia Sotomayor recently noted in a case involving the constitutionality of GPS tracking devices, the laws on the books today are "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." She "doubt[s]" anyone would, for instance, "accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year." As Justice Sotomayor astutely observes, more expansive laws that adequately protect privacy rights in today's digital landscape are long overdue and, perhaps more importantly, badly needed.
On Thursday, the Senate Judiciary Committee will consider one potential "fix" for this gap between today's rules and today's technologies. It will review a proposed amendment to the Electronic Communications Protection Act offered by Senator Patrick Leahy of Vermont that would require the government (except in very limited circumstances) to give notice to the "subscriber or customer" within three days of receipt of any electronic communications.
Senator Leahy's proposal -- a reversal of his prior, more pro-government position -- has garnered support as one that finally prioritizes the protection of digital privacy. The National Association of Criminal Defense Lawyers, a national organization that advances the goal of ensuring justice and due process for those accused of crimes, issued a press release supporting the proposed legislation. It included a link to a letter signed by more than thirty former high-level state and federal prosecutors supporting Senator Leahy's amendment. As they put it that letter, the proposed new rule "would provide for a much needed judicial check on when the government can access our private digital information."
It is high time for the law to catch up with today's technologies. And, while not perfect, Senator Leahy's proposition is a step in the right direction. It would preserve law enforcement's ability to do its job of investigating crime -- no doubt important work. But it also would afford a higher level of protection to those who routinely use email and social networking services.
Write, call or -- dare I say -- email your congressional representatives. Or sign the online petition "Tell Congress: Stay Out of My Email!" More than 7,700 people already have. Let your voice be heard, or risk hearing your own words read back to you by the government.