Police shouldn’t be able to search people’s emails without a warrant, privacy and civil liberties backers said on Friday.
Advocates urged congressional staffers to get their bosses to support updating the Electronic Communications Privacy Act (ECPA), a 1986 law that allows authorities to search emails without a warrant as long as they have been stored online for at least 180 days.
A reform bill from Reps. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) currently has 200 co-sponsors and “should have more,” according to Katie McAuliffe, the executive director of Digital Liberty and federal affairs manager at Americans for Tax Reform.
“There should be a vote on this bill that makes it clear who cares about the Fourth Amendment and who doesn’t,” she added, referring to the constitutional prohibition against unreasonable search and seizure. “ECPA is a demonstration of how important privacy is and it’s the first step to strengthening the Fourth Amendment in a digital environment.”
In 1986, when the law was first passed, emails stayed online only for a short period of time. People would log on with a dial-up modem, download their emails onto their computer, and then they would be deleted from the server.
That’s a lot different than how email works now, where millions of emails, Facebook messages and other communications stay online in the “cloud.”
“That’s where Congress just dropped the ball,” said Jim Dempsey, a member of the federal Privacy and Civil Liberties Oversight Board and vice president for public policy at the Center for Democracy and Technology. “[They] didn’t anticipate where the technology was going.”
Law enforcement agents say that getting email records can be invaluable during an investigation.
“It’s hard to think of a crime nowadays where this sort of evidence is not going to be relevant or important,” said Richard Downing, deputy chief of the Justice Department’s computer crime section.
However, the department sees “considerable merit of moving to a warrant system for content,” he added, so long as Congress makes it possible for emails to be retrieved under certain conditions, like for civil investigations.
The effort to update the law had been gaining steam for months, but revelations about surveillance programs at the National Security Agency (NSA) largely sidetracked the issue.
If lawmakers want to overhaul that effort, they had better hop on board to require warrants for email searches, McAuliffe said.
“If you are one of the people that want something down about NSA, if we can't get ECPA done, forget NSA,” she said. “Forget that. ECPA, this is the low-hanging fruit.”