Right and Left Unite to Bring Privacy Protections to Digital World

The Fourth Amendment -- the one that is supposed to keep the government out of your mail and outside your door -- is one area that can unite grownups of the left and right.
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These days there is a great deal of whining about the lack of bi-partisanship in Washington. With the two parties trying to move in opposite directions on key issues, this is understandable. In fact, commendable. Most calls for bi-partisanship are veiled demands for surrender. Still there are often important, if overlooked, issues that offer a real opportunity for left/right cooperation without anyone checking their principles or common sense at the door.

The Fourth Amendment -- the one that is supposed to keep the government out of your mail and outside your door -- is one area that can unite grownups of the left and right.

To this end, I co-authored an op-ed in Politico just yesterday about the need to reform the Electronic Communications Privacy Act (ECPA) with none other than a "card-carrying member of the ACLU," Laura Murphy, who has gone so far as to become the Director of the ACLU's D.C. Legislative Office. We wrote:

In the age of the Internet, your privacy is not Fourth Amendment safe. Government agents cannot tap your phone without a warrant issued by a judge based on some indication you are involved in wrongdoing, but the government claims the authority to read your emails without a warrant. The government can't open your postal mail or seize papers from your home without a warrant, but it says it can read any private and sensitive documents you've stored in the Internet cloud.

We go on to clarify that:

We do not intend our reforms in any way to impede investigations of terrorism or serious crimes such as child pornography. We leave in place laws regarding child pornography. We preserve emergency exceptions for cases posing immediate threat of harm. We do not touch authorities for national security investigations and international terrorism. Our reforms focus on ordinary investigations, and all we are saying is that the warrant standard established by the Constitution for privacy in the physical world should also protect privacy in the digital world.

This is not the first time ATR and the ACLU have spoken out on this issue. In November last year we co-authored an op-ed in The Hill on the same topic, saying, "Today, if the police want to come into your house and take your personal letters, they need a warrant. If they want to read those same letters saved on Google or Yahoo they don't. The Fourth Amendment has eroded online."

This is an issue where conservatives, liberals, Democrats, Republicans and libertarians can all agree. As such, ATR has joined with the ACLU and the Center for Democracy and Technology to form Digital4th. Three heavy-hitting, enthusiastic think tanks and lobbying efforts to ramp up awareness and support for warrant protections for digital content and geo-location data.

We appreciate House Judiciary Committee Chairman Bob Goodlatte taking leadership on this issue in the House by holding a series of hearings on ECPA reforms. Additionally, Representatives Zoe Lofgren (D-Calif.) and Ted Poe (R-Texas) introduced a bill that includes warrant protection for digital content.

To continue the push for ECPA reform in the Senate, today Senator Patrick Leahy (D-Vt.) and Senator Mike Lee (R-Utah) introduced legislation requiring a warrant for content. This legislation would get rid of the 180-email distinction between warrant and subpoena requirements.

Digital4th believes that warrant requirements for email content shouldn't depend on whether your emails have been opened or not, or if they've been stored for more than 180 days.

The drive to restore the meaning of the Fourth Amendment is making some headway in the House of Representatives as well. In Tuesday's House subcommittee hearing entitled ECPA Part 1: Lawful Access to Stored Content, it appears the Department of Justice will for the first time agree, on record, that the 180-day rule is arbitrary. In submitted hearing testimony it is expected that Acting Assistant Attorney General Elana Tyrangiel will say, "We agree, for example, that there is no principled basis to treat email less than 180 days old differently than email more than 180 days old."

In closing the hearing, Congressman Jim Sensenbrenner (R-Tenn.) said that the 180-day different standards between a warrant and a subpoena are outdated and probably unconstitutional, and we probably should require a warrant for most of the stuff you can get from a subpoena in the digital world.

We can strike a bi-partisan blow for liberty by updating ECPA to keep the Fourth Amendment meaningful in the modern world of e-mails and clouds.

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