Most people probably believe that when they "trash" an email, that's the end of it. They're wrong. Chances are even greater they don't know that the federal government can read any of their emails that have been opened or stored for more than 180 days on third-party servers (Google, Yahoo, Cox, e.g.) — without notice and without a warrant. "That's chilling," says Louisiana Congressman Steve Scalise, the House majority whip. That's why Scalise joined more than 400 other members of the U.S. House of Representatives in unanimously passing the Email Privacy Act (HR 699), which now awaits action in the U.S. Senate. We urge Louisiana's senators to push for immediate passage of the measure — with no amendments.
We are far from alone in supporting the act. Many of the largest names in the tech and publishing industries also back the bill, which has bipartisan support in both the House and Senate. A recent letter from dozens of prominent tech companies urged senators to approve the "carefully negotiated compromise" immediately and without amendments.
Scalise tells Gambit he hopes to see the proposal passed by the Senate and signed by President Barack Obama this year. That's an ambitious timetable in a bitterly divided Congress, but if any measure deserves bipartisan support in the current environment, this is it. The list of supporters includes voices of the left and the right, from the American Civil Liberties Union to the U.S. Chamber of Commerce. "The laws that protect email privacy go back to 1986 (the Electronic Communications Privacy Act), when there was no email and no internet," Scalise says. "We've been relying on laws that don't recognize how digital communications work."
The result has been an egregious — and dangerous — pattern of government overreach. For example, a 2009 "Search Warrant Handbook" issued by the Internal Revenue Service (IRS) to the agency's Criminal Tax Division contains the following directive: "In general, the Fourth Amendment does not protect communications held in electronic storage, such as email messages stored on a server, because Internet users do not have a reasonable expectation of privacy in such communications. Further, because the Fourth Amendment applies to government searches rather than searches by private actors, it does not appear to limit the ability of internet service providers (ISPs) to obtain custo- mer information and disclose it to the government."
Government agencies such as the IRS have relied on that language not only to read private emails but also to compel ISPs to turn them over to investigators — without warrants and without any notice to the people whose emails the government wants to read. As The Wall Street Journal noted in an editorial supporting the act, "The potential for abuse is evident." We agree.
"The Email Privacy Act completely flips this policy around and says that your email communications are your private information, and the only way any law enforcement agency can access it is by getting a search warrant signed by a judge," Scalise says. That's how the Fourth Amendment protects written documents. Email deserves the same level of protection.