Keeping your e-mail private
If you left a letter on your desk for 180 days, you wouldn’t imagine that the police could then swoop in and read it without your permission, or a judge’s. But that’s just what law enforcement officers can do with your e-mail. Using only a subpoena, government agents can demand that service providers turn over electronic communications they have stored, as long as they are more than six months old. Protections are even weaker for opened email or documents stored in the “cloud.” The advertisements that the Postal Service piles into your mailbox every day are legally sacrosanct; the medical notifications your health insurer sends to your Gmail account are not.
This bizarre reality is thanks to the 1986 Electronic Privacy Communications Act, a law written before anyone dreamed that Americans would send, receive and store so much private information over third-party services, such as Gmail, or would draft documents using cloud computing that they intend to keep confidential. Now Democratic Sen. Patrick Leahy of Vermont, chairman of the Judiciary Committee and the 1986 law’s original author, wants to amend it into the 21st century.
Leahy wants to adopt changes that would establish the confidentiality of e-mail and other electronic communications. Service providers would be prohibited from handing over email, and Leahy would get rid of the strange 180-day rule that the government can now use to compel disclosure. To access any e-mail content, law enforcement officers would be required to obtain a search warrant from a judge after demonstrating probable cause. The amendments would also oblige officials to give those whose e-mail they are reading a copy of the search warrant. This would bring the law in line with the reality that Americans are using electronic communications services to exchange all sorts of sensitive data.
There is always a trade-off between protecting Americans’ privacy and empowering law-enforcement officers to fight crime. But the choice is not difficult in this case. Leahy’s amendments are worthy of enthusiastic support from his colleagues.