Yes, The Feds Can Read Your Email (and more)
If you need some motivation to catch up on reading your email, consider this: the U.S. federal government can read any unopened email you’ve left on an email provider’s server without obtaining a search warrant. The full story is even more disturbing, but there's something you can do about it. Read on...
Privacy Protection Stalled In Congress
Even if you’ve opened an email, the feds don’t need a warrant to read it if it’s been stored on a third party’s server for more than six months (180 days). Email you’ve sent is also subject to warrantless searches.
Is this a new law passed by Congress that allows snooping into your email privacy? Actually, no. It's been the law of the land for almost 30 years. Lawmakers are trying to change that, but there's a roadblock. More on that later...
You can thank the antiquated Electronic Communications Privacy Act of 1986 for this gaping loophole in privacy protection. Written in the age of dialup modems and PCs that supported a maximum of 640 KB of RAM, the ECPA was watered down by law enforcement lobbyists and a Congress that had little clue what it was doing with this new-fangled Intertube thingie.
Law enforcement argued that unopened messages stored on a third-party server were still “in transit” and not yet the recipient’s property, therefore no warrant was required to search them. Messages left undeleted for more than six months were considered “abandoned property” like trash put out on the curb; the recipient had relinquished ownership so the 4th Amendment did not apply.
The ECPA applies to all “electronic communications,” not just email. Facebook posts and private messages; text messages; Twitter posts and direct (private, one-to-one) messages; blog posts marked “unpublished;” and just about anything you put online and thought was private.
Deleted Doesn't Mean Gone
Back in the ‘80s, storage space was expensive and scarce, so “deleted” actually meant “gone.” But nowadays, Google Mail, Facebook, and some other third party service providers archive users’ content by default. So all those old messages are subject to search by the FBI, the NSA, and even the IRS’ criminal investigations unit.
Obviously, things have changed since 1986. Users’ expectations of privacy are greater. Even Congress gets that; over 280 House Representatives have co-sponsored the Email Privacy Act, a bipartisan effort to require search warrants for ALL email and prohibit service providers from divulging users’ email to government agents without a warrant. The EPA was introduced in 2013 and made it through committees, but Congress adjourned in 2014 without voting on it. It was re-introduced in the 2014-2015 session.
The problem is that this bill is stalled in the House Judiciary Committee. The committee chairman, Bob Goodlatte (R-VA, 6th), has said that he may “have some potential modifications to the end product.” Once the EPA clears this bottleneck, it still has to move through the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.
If you would like to encourage Rep. Goodlatte to get busy on the Email Privacy Act (H. R. 699), you can send him email via his House Web form. This form only accepts messages from addresses in Virginia's 6th Congressional District. You can find phone and fax numbers at the bottom of the page, and Rep. Goodlatte also has a Facebook page which allows people to send a message.
The Senate version of the EPA (S.356) has been read twice and now sits on the “to-do list” of the Senate Judiciary Committee’s chairman, Chuck Grassley (R-IA). His contact form accepts messages regardless of your location.
Let's Get 'Er Done!
The ECPA’s warrantless search provisions have been struck down in the Sixth Circuit Court of Appeals district (Kentucky, Michigan, Ohio and Tennessee). In those States only, a probable-cause search warrant is required. Note that the end user can be located anywhere; it’s the service provider’s server(s) that are protected from warrantless searches if the server(s) are located in any of those four States.
It is unconscionable for two men to thwart the will of a majority of Congress, virtually the entire tech industry, every privacy and civil rights organization, not to mention the American people. It’s time to light a fire under Grassley and Goodlatte, and get this much-needed update of the ECPA passed before Congress adjourns in late December. Otherwise, we’ll have to start all over again next year.
I encourage you to visit the links I gave above, and send a personal message to the Congressman and the Senator. Tell them you support the Email Privacy Act, and encourage them to get it done! Your thoughts on this topic are welcome. Post your comment or question below...
This article was posted by Bob Rankin on 17 Jul 2015
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Article information: AskBobRankin -- Yes, The Feds Can Read Your Email (and more) (Posted: 17 Jul 2015)
Copyright © 2005 - Bob Rankin - All Rights Reserved