The government should not find it easy or convenient to invade its citizens’ privacy. The Fourth Amendment of the Constitution ensured that. Yet, over the past 225 years, that near absolute right against warrantless searches has been eroded.
The House of Representatives, in late April, did its part to close one of the largest loopholes in warrantless searches – the government’s unchecked power to subpoena emails older than 180 days without a warrant. Even in the midst of this heated presidential election, the House of Representatives unanimously passed the Email Privacy Act, extending the same Constitutional protections that apply to written communications to emails and other electronic messages.
Now under consideration in the Senate, the spirit of the Email Privacy Act is being threatened by an amendment proposed by Sen. John Cornyn. The express purpose of the Email Privacy Act is to require the government to obtain a warrant for intrusive electronic searches. But Sen. Cornyn’s amendment would carve out an exemption for the FBI – allowing the agency to obtain records “if the FBI director or a designee says they are ‘relevant to’ a terrorist or intelligence investigation.”
The Texas Senator told Politico, “when the Obama administration and FBI Director say they think this is important, it strikes me as pretty important.” Some of us disagree. This is a dangerous amendment and unnecessary amendment. As retired Judge James Stiven pointed out in the Hill, the law enforcement community’s concerns are baseless:
Efforts by law enforcement officials to preserve their ability to bypass a warrant should not hold up this process, because the legislation’s provisions actually solve their well-intentioned concerns.
They have two chief complaints about ECPA reform. The first is that it doesn’t have a wide enough exception for emergencies. But ECPA’s existing exception allows warrantless access to data in situations where lives or serious physical harm are threatened, and the exception was kept intact in the recently-passed Email Privacy Act. What critics propose is to expand its scope to situations that don’t threaten grave danger. That’s an abridgement of civil liberties we wouldn’t tolerate when it came to the privacy of our telephone communications. We shouldn’t permit it elsewhere.
Nor should we weaken reform in response to criticism of the requirement for law enforcement officials to notify you when they obtain a warrant to search data stored online. Again, an exception in ECPA was retained in the Email Privacy Act that permits withholding notice when lives or physical harm are threatened or when it might result in a flight from prosecution or destruction of evidence. To withhold notice even when it doesn’t entail those risks deprives the subject of their constitutional right to challenge the validity of the warrant.
In sum, all exceptions to Fourth Amendment protections previously allowed were included in the proposed ECPA reforms. Government’s argument for greater intrusion in the private lives of Americans is no more reasonable today than it was thirty years ago. Americans of all political views have come together to insist we fix this unintended threat to our privacy. The Senate Judiciary Committee should resist any attempts by law enforcement to ignore this rare political consensus by increasing its power at the expense of our liberty.
Instead of siding with executive overreach, Sen. Cornyn, other Republicans and the entire Senate must side with the Fourth Amendment. That means passing a clean Email Privacy Act like the House did, without any carve-outs. As the Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Tell Sen. John Cornyn, and the entire Senate, to recognize the Bill of Rights and preserve our natural right to be free from unreasonable government intrusion into our persons, houses, papers, and effects. Tell them to pass the House version of the Email Privacy Act.