If a law enforcement agency wants to examine your snail mail or the contents of your computer hard drive, it must obtain a search warrant, which means it must convince a judge that there is probable cause that a crime has been committed. But no warrant is required to obtain email or documents you have stored in a computer “cloud” so long as they are 180 days old.
That would have changed under legislation recently approved by the Senate Judiciary Committee at the behest of its chairman, Sen. Patrick J. Leahy (D-Vt.). If enacted, it would make the 1986 Electronic Communications Privacy Act conform to 21st century understandings of personal privacy. Before the advent of the Internet, it arguably made sense for the law to distinguish between someone’s own records and those that belonged to a third party, such as the telephone company. That distinction has been rendered meaningless by technological advances that allow individuals to receive and retain email and store documents in cyberspace. (The 180-day distinction was based on a flawed analogy between telephone conversations and email; the notion was that email subscribers were primarily concerned about the privacy of contemporaneous communications.)
In interpreting the 4th Amendment’s ban on unreasonable searches and seizures, the Supreme Court has said that the crucial question is whether someone has a reasonable expectation of privacy. The same standard should guide Congress in adapting federal statutes to a new information age in which Americans rightly regard their email and stored communications as private documents. The amendment approved by the Judiciary Committee does that by requiring a government entity, such as a state or federal law enforcement agency, to secure a warrant before obtaining email and other documents in the possession of an Internet service provider.
The Judiciary Committee attached the Leahy email amendment to much less consequential legislation allowing subscribers to online movie services to share their viewing history on social media. Unfortunately, the House and Senate approved the movie bill without the email amendment, postponing any final action on email privacy until the next Congress. But the Judiciary Committee’s action was an important first step.
From the Internet to cellphones to GPS technology to infrared devices that can “see” into a house to indicate whether marijuana is being grown there, technological changes have challenged personal privacy in ways that the law has been slow to recognize. Congress can begin to catch up by approving the Leahy amendment.