It’s time for Congress to stop living in 1986

The Government shouldn’t be able to read your email or access data you have stored online without a warrant, yet under current law, they can.  The House of Representatives unanimously voted to fix that on Wednesday by passing the Email Privacy Act.  Now, the Senate must act and President Obama must sign the bill.

One of the challenges government faces is applying century’s old legal concepts, like the Fourth Amendment, to rapidly changing technology.  Until the Email Privacy Act is signed into law, government access to email is covered by the Electronic Communications Privacy Act (ECPA). Under EPCA, a 1986 law, email left on an online server more than 180 days is considered abandoned and Americans have no reasonable expectation of privacy in something that is abandoned.

{mosads}Government agencies know all about this law. Training manuals for the IRS instruct agents how to gain access to email to investigate American citizens. Law enforcement regularly accesses citizens’ emails for investigative purposes.

In light of today’s technology, it doesn’t seem logical that government should have this ease of access to emails without a warrant.  Remember, however, lawmakers back then had no idea how the internet would grow and the cloud would develop. In 1986, when ECPA was enacted, AOL was an online gaming service for the Commodore 64, Apple had just launched the Macintosh Plus with 512K of Ram, and high end email access was through services like CompuServe over a 1200 baud modem (todays typical internet connections are 20,000,000 baud).

Today, Americans store thousands of emails and other data online indefinitely; they even store backups of their entire computers on services like carbonite.com.  The Email Privacy Act brings the law up-to-date with modern technology and modern privacy concerns.               

Under the Email Privacy Act, people can move documents from their computer to their cloud storage without giving up their ownership or privacy to that information. It requires the government to obtain warrants rather than subpoenas to access emails that have been opened or are older than 180 days. The bill also requires the government to serve a copy of the warrant on the customer within 10 days of receipt of stored contents, except in some special circumstances.

The legislation also expands the definition of what is covered to include any service that provides storage or computer processing services, regardless of how incidental that storage or computer processing is. This is designed to protect customers’ information used on websites such as Uber, PayPal, banks, department stores, Starbucks, etc.

While no bill is perfect, this one is a giant step further toward bringing legislation up to speed with current technology.

While all the technology changes happening today may cause people’s head to spin, the House has taken a big step in preserving Fourth Amendment rights and the intent of the framers of the Constitution.

The history surrounding the Constitution and Bill of Rights shows America’s Founding Fathers were concerned about abuses by the British crown that led up to the Revolutionary War.  One of those abuses was the British government sending soldiers to rifle through the papers of enemies of the crown looking for evidence to use against those criticizing the government. In revolutionary times, diaries and letters are the way information was stored.  Today, it’s blogs and email.  The concepts, however, are the same. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

Congressman Blake Farenthold represents the 27th District of Texas.