Congress has been vigorously debating the Bill of Rights over the past few months, primarily the right to bear arms and its relevance to 21st century America. But in all the discussion on the Second Amendment, the Fourth Amendment, which protects against unreasonable search and seizures, has dropped relatively out of sight. Earlier this month, however, Americans discovered how little privacy they have in their electronic communications.
Just before Tax Day, a Freedom of Information Act request by the ACLU revealed that the Internal Revenue Service claimed the authority to read emails, instant messages, and text messages -- all without a warrant. The IRS pointed to authority granted by the obscure Electronic Communications Privacy Act (ECPA) -- a law written and passed in 1986, before electronic communications and cell phones were essential to everyday life. Yet, because of this antiquated law, the IRS believes it can access your emails, without warning and without notification, once opened or left on a third-party server for more than 180 days. Had those same communications been sent on paper, the IRS would need to get a judge to sign a warrant for them, regardless of whether you opened a postmarked envelope or let it sit on your mother-in-law's coffee table for 181 days.
The fact that the law gives stronger protection to written, paper-based communications shouldn't be surprising -- the government often operates illogically. The fact, however, that ECPA has gone almost three decades without substantial revision is alarming. The past 27 years have seen a technological revolution, with the Internet becoming a force within everyday life and cloud computing an essential part of doing business.
In 1986, email was rare. Now, 145 billion emails are sent every day for business and personal purposes. There is no way that the 99th Congress could have envisioned the exponential growth of this relatively new technology. At a time when the government shows a preference for electronic records -- for example, in health care -- the idea that these are less protected by existing law should do something rare: unite liberals, conservatives, and independents for legislative reform.
The spadework for that grassroots effort is currently being dug.
Over the past few weeks, liberal, conservative and non-partisan groups have combined forces to raise awareness and spur change to ECPA. The ACLU has joined with Heritage Action for America, the Center for Democracy and Technology, and Americans for Tax Reform to form Digital 4th, a coalition dedicated to reforming ECPA and bringing Fourth Amendment protections into the 21st century.
At present, ECPA allows government officials to invade our private lives based on hunches and suspicions. Extending the standard that exists for paper records to those stored electronically is a common-sense solution that strengthens individual liberties, while giving government a single standard across all platforms of communication.
Doing nothing is not an option.
Americans value privacy, or "the right to be let alone." Technology has far outpaced the law, and now the law needs to catch up to the 21st century. Congress should act to reform ECPA to include the same standard for electronic communications as it does for paper notes, otherwise the law will be more of a suggestion rather than the rule.
Christopher Calabrese is the legislative counsel for privacy-related issues in the American Civil Liberties Union's Washington Legislative Office (WLO). Prior to joining the WLO, Calabrese served as project counsel to the ACLU Technology & Liberty Project (TLP).