The campaign, “Vanishing Rights,” aims to raise awareness about a 1986 law that allows the government to read emails after six months.
Laws protecting Americans’ privacy online have not been updated since 1986, years before the Internet was available to the public, meaning that police can view any email older than 180 days without a warrant. It’s become a major issue for civil liberties groups who say that laws need to be overhauled in order to protect online privacy and Fourth Amendment rights barring police from carrying out unreasonable searches and seizures.
“This is an important issue because it’s a core constitutional issue. Right now the government is using ECPA [The Electronic Communications Privacy Act] to obtain Americans’ emails without a probable cause warrant,” said Mark M. Jaycox, a policy analyst for the Electronic Frontier Foundation, in a statement to Mint Press News.
The EFF is one of 29 civil liberties organizations that launched an online advocacy campaign called “Vanishing Rights,” aimed at raising awareness around this issue and urging Congress to overhaul the 27-year-old Electronic Communications Privacy Act. The coalition is hoping to build support for The Email Privacy Act, a proposal with 137 cosponsors that is currently being debated in the House of Representatives.
1986 Privacy Act
Warrantless email surveillance is part of a much larger set of surveillance issues exposed earlier this year by NSA whistleblower Edward Snowden. Snowden, a former Booz Allen Hamilton employee, leaked documents to the Guardian newspaper showing that the NSA has been collecting the telephone records of tens of millions of Americans.
Although authorities have not been listening in on telephone conversations, they have been collecting what is known as “metadata,” which includes the length of calls, call locations and telephone numbers dialed. The Obama administration insists that this surveillance is legal.
Lost in the whirlwind of the Snowden whistleblowing drama is a brewing battle to change the Electronic Communications Privacy Act that was signed into law in 1986 by President Ronald Reagan.
The law prohibits warrantless access to many types of electronic communication, including “signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.”
The problem is that the Internet wasn’t available to the public in 1986, and didn’t even become a prominent feature in U.S. homes until the mid to late 1990s.
To put things in perspective, only 10 percent of U.S. homes had Internet access in 1995, according to the Pew Internet Project — nine years after the law was passed.
What can police view without a warrant?
As the Internet became more widespread, groups have tried, unsuccessfully, to challenge the constitutionality of the law. The 2012 Version of FBI Domestic Investigations and Operations Guide obtained through a Freedom of Information Act request by the American Civil Liberties Union shows that the authorities believe that because of the law, the public does not have any reasonable expectation of privacy after 180 days.
“. . [I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the email has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney,” the FBI guide says.
What this means is that if an individual prints an email, the police would need a probable cause warrant to obtain a paper copy of the correspondence — but are free to read any email online so long as it is at least 180 days old.
“If those same emails were printed out on your desk, the government would need a probable cause warrant. The sixth circuit already agrees that emails are protected by the Constitution, it’s time for Congress to follow suit and reaffirm Americans’ core constitutional rights,” EFF policy analyst Mark Jaycox said.
Founded in 1990, the EFF is a legal advocacy group with a network of 140,000 people that work on privacy, innovation and consumer issues. The group is one of 29 that is supporting the recently launched “Vanishing Rights” project.
Emails are only one part of the problem. The ACLU reports that a bevy of correspondences on social media are also vulnerable to warrantless police surveillance. In addition to emails, authorities can view Instagram photos, Facebook comments and messages older than six months, Twitter messages older than 6 months, search queries and dropbox accounts.
The pushback continues
Americans have not taken the issue laying down. “The majority of the public is against the spying, and Congress is beginning to act: over 12 bills have been introduced trying to reign in the NSA,” Jaycox said.
Spearheading the effort to overhaul internet privacy laws is the ACLU and the EFF, both of which helped launch the Vanishing Rights campaign this week.
“As we have written about time and time again, the Electronic Communications Privacy Act (ECPA), the main statute governing privacy online, is seriously outdated. It was passed in 1986 by well-meaning legislators who intended to put strong privacy protections in place for emerging technologies like email. However — unlike technology which has evolved at a breakneck pace — ECPA has stagnated and become woefully out of date, leaving our online lives vulnerable to local, state, and federal law enforcement,” the ACLU blog reports.
By urging Internet users to become vocal about this issue, the coalition hopes that Americans will contact their elected representatives and demand new Internet privacy laws. Nothing has changed policy-wise on a national level, but there are signs that the Justice Department may support laws that would require authorities to obtain a warrant before reading emails.
In May, Attorney General Eric Holder testified that he thinks the government should have to get a warrant before it accesses any email regardless of its age.
Toward that end, the Justice Department submitted the following statement to Congress in March:
Many have noted and we agree that some of the lines drawn … that may have made sense in the past have failed to keep up with the development of technology, and the ways in which individuals and companies use, and increasingly rely on, electronic and stored communications. We agree, for example, that there is no principled basis to treat email less than 180 days old differently than email more than 180 days old.
There is currently a proposal in Congress that would do just that. The Email Privacy Act is currently being debated in the House of Representatives and already has 137 co-sponsors — 96 Republicans and 41 Democrats.
On the state level, Texas recently passed a law requiring law enforcement to get a warrant before accessing email. California and Massachusetts have pending legislation as well.