Unbeknownst to most Americans, ambiguous language in a 1986 communications law extends Fourth Amendment protections against unreasonable search and seizure only to electronic communications sent or received fewer than 180 days ago, McClatchy DC reported.
The so-called “180-day rule” allows the government to treat any emails, text messages or documents stored on remote servers – popularly known as “the cloud” – as “abandoned” and therefore accessible using administrative subpoena power, a tactic that critics say circumvents due process, McClatchy DC reported.
But clearing your inbox may not protect you, because even deleted files could still be accessible without a warrant, as long as copies exist on a third-party server somewhere.
When the Electronic Communications Privacy Act of 1986 was written, most people did not have email accounts. Now, Republican Congressman Kevin Yoder, of Kansas, is leading efforts to update the law.
“The government is essentially using an arcane loophole to breach the privacy rights of Americans,” Yoder told McClatchy DC. “They couldn’t 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’t think Americans believe that the Constitution ends with the invention of the Internet.”
Earlier this month, Yoder and Congressman Jared Polis, a Colorado Democrat, proposed legislation that would require government agencies and law enforcement to obtain a search warrant based on probable cause, McClatchy DC reported.
The government also would have to notify users within three business days of accessing their email or other digital communications, though law enforcement would have 10 days.
Lawmakers have spent years unsuccessfully trying to reform the Electronic Communications Privacy Act. But Yoder’s bill, the Email Privacy Act, is gaining momentum in the wake of revelations about the National Security Agency’s spying on Americans.
With 239 co-sponsors, Yoder’s bill already has the support of most members of the House of Representatives. He’s confident that it ultimately will have a veto-proof majority, McClatchy DC reported.
— Rep. Jared Polis (@RepJaredPolis) March 13, 2014
The conservative Heritage Foundation and the liberal American Civil Liberties Union, organizations that are polar opposites politically, both support the bill.
“Privacy crosses political aisles, especially when we see the government expanding domestic spying in secret in so many different ways,” said Lee Tien of Electronic Frontier Foundation, a digital civil liberties group that has been pushing the bill for years.
Count major tech companies like Amazon, Facebook, Twitter, Apple and Google among the bill’s supporters, too.
