Our Quaint Electronic Privacy Protections

By Mark Wilson

The email! It burns!

The Electronic Communications Privacy Act of 1986 (ECPA) is only one year older than my little sister. But at least she knows what email is. The ECPA still does not. In fact, the 1980s Honeywell advertisement at left (“What the heck is Electronic Mail?“) pretty much sums up the current state of constitutional protection for stored electronic communications.

The Stored Communications Act (SCA), a subsection of the ECPA, grants full Fourth Amendment protection to data that has been in electronic storage for less than180 days. More than 180 days? You can get that with an administrative subpoena. The thinking back in 1986 was that most electronic storage providers routinely erased customer information after six months because data retention was so expensive. Therefore, said Congress, it must be that someone who has something in electronic storage that long must not care about it. Those data are going to be erased, anyway, so why grant constitutional protection to them?

Fast forward to a future where even the “fast forward” metaphor is antiquated, and data retention is exactly the opposite. Hard disks are cheap, cheapcheap! Online services like Mobi want you to pay them to back up your entire computer. Google hands out multiple gigabytes of online storage like they’re perfume samples. We’ve come a long way, baby.

The SCA, however, has not. In a Kafkaesque twist of fate, the emails that we would most like to keep private — the ones we keep forever — are the ones with the fewest privacy protections. But take heart! There’s one group of people that is not complaining: federal prosecutors. When it comes to seizing data, the administrative subpoena standard of “related to an ongoing investigation” lets the Feds comb through as much email as they want with a de minimis showing of necessity. The Justice Department’s official position is that strengthening constitutional protections will have dire consequences.

But at least one federal court decided that something was wrong, here. In 2010, the Sixth Circuit, in a fascinating case of “male enhancement pill” mail and wire fraud called U.S. v. Warshak, took a searching look at the SCA, which allowed the government access to the email Warshak stored in his Hotmail account. Applying the test from Katz v. U.S., the Court concluded that we do have a subjective expectation of privacy in our remotely-stored email, and yes, that’s an expectation society was willing to recognize. Unfortunately, this is the law only in the Sixth Circuit.

Last month, however, Rep. Zoe Lofgren introduced H.R. 6259, which aims to provide email with full Fourth Amendment protections by striking that 180-day distinction.. That means no more administrative subpoena; if the governments wants to see your email, it needs to get a warrant. The Justice Department, which argues that they need the unconstitutional provisions of the SCA in order to do their jobs, certainly is not wrong. Law enforcement would be much easier if police could barge into our homes and search whatever they wanted. But that’s not really what the Constitution permits.


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