Recent statements from the IRS about accessing email and online communications of citizens raised more than a few eyebrows. While the IRS has promised to rewrite its email search policy, government access to private online communications remains a real concern. Many assume their online privacy is afforded the same protections as their real world privacy, but they are mistaken. Many of our laws lag terribly behind the technologies that govern our lives.
The U.S. Constitution, the document that we usually turn to when seeking protections from government intrusions, is problematic when it comes to privacy, because privacy is never directly addressed. Individuals are assumed to enjoy a sphere of privacy, but the question of the size of that sphere has spawned volumes of law review articles and legal decisions. However, we do know that the 4th Amendment to the Constitution protects citizens from unreasonable search and seizure, and requires government officials to produce a warrant prior to a search. This check against government should apply uniformly to all our activities, whether in the real world or in cyberspace.
In the physical world, a judge grants a warrant to law enforcement officers after determining there is enough evidence to suggest criminal activity. Online, things are different. The Electronic Communications Privacy Act (ECPA) governs privacy, and the law makes a distinction between emails that are less than 180 days old—which require a warrant—and older communications that are not protected by a warrant. As a result, when individuals interact online, their privacy is unnecessarily limited.
Cloud computing is a particular problem under ECPA in its current form, even though it is becoming more dominant for both businesses and consumers. When written, ECPA focused on real-time communication, equating emails moving through wires with real-time conversations over telephones. This explains why new emails are covered while older ones are not. Online data storage played a much smaller role when ECPA was written, and internet service providers routinely deleted old emails to increase storage capacity. In today’s world, however, the cloud has become a vast storage facility, with many businesses providing online space to consumers and businesses. Under current law, much of the cloud is a veritable open library for government officials.
The internet has provided tremendous value, both through commerce and through expanded social networking. The rapid growth of the internet and social media are redefining the way America does business and the way individuals interact. Yet many of the rules governing online activities were established years ago to regulate a world that has long since vanished. Politicians need to exercise caution to avoid suffocating this important sector of our economy.
We are protected from unwarranted wiretaps through laws that require government officials to obtain a warrant prior to eavesdropping on private conversations. This important safeguard was adopted in an era before the internet, but it, too, was adopted in response to a new technology—the telephone, and it was only in 1967 that the Supreme Court affirmed that warrants were needed for wiretaps. Today’s technology does not discriminate between written or spoken words; the networks that connect us view them all the same—a series of ones and zeroes that carry information from one individual to another. As more and more of our activities migrate to the cloud, it is important that our legal protections are updated to keep pace with our lifestyles and the technologies we use.
But, as made abundantly clear by the Supreme Court’s dismissal of the Clapper v. Amnesty International case in late February, the judicial branch has been reluctant to intervene in the debate over warrantless searches in the cyberworld. This makes it even more important for Congress to show leadership on this important issue, and, fortunately, Senators Pat Leahy (D-VT), and Mike Lee (R-UT) have stepped forward with an amendment to ECPA that specifically states that a warrant is required prior to accessing private online discussions, regardless of how long they have been stored.
The Leahy-Lee legislation, “The Electronic Communications Privacy Amendments Act of 2013,” stipulates that, barring emergencies, law enforcement officials must provide a warrant when asking internet service providers to turn over private communications of their customers. Importantly, it eliminates the distinction between old and new electronic communications, providing assurances that the cloud enjoys protections from warrantless searches.
As technology advances, the demarcation between the online and real worlds becomes increasingly blurred. The Fourth Amendment to the Constitution was included to protect individuals, and those protections should not stop at technology’s doorstep. Governments can be just as intrusive—if not more so—in the cyberworld, and Congress needs to make clear that U.S. citizens continue to enjoy the protections of the Fourth Amendment wherever they conduct their lives.