Privacy SOS

Broad coalition of business and civil liberties groups demand a warrant requirement for email

Privacy Cat says: "U want mah emailz? Get a warrant."

Do police need a warrant to read our emails? Unfortunately, the answer to this question remains much too complex.

The warrant standard for email under current US law is far from clear cut: it depends on how old the email is, and where you live. Sometimes police need a warrant, and sometimes they don’t. 

Under the woefully outdated Electronic Communications Privacy Act (of 1986!), police may use a simple subpoena (which is never seen by a judge) to obtain opened emails and those older than 180 days. (Do you go through your email deleting everything you've opened, or all emails over 6 months old? Didn't think so.)

The rules are simpler in some parts of the country, thanks to a 2010 decision in the Sixth Circuit Court. There, an 11-judge panel ruled in favor of email privacy: 

"Given the fundamental similarities between e-mail and traditional forms of communication, it would defy common sense to afford e-mails lesser Fourth Amendment protection," the court said.

Therefore people who live within the jurisdiction of the Sixth Circuit — residents of Michigan, Ohio, Kentucky and Tennessee — can be pretty confident that police are getting warrants to read their emails. 

The rest of us? Not so much.

But reforms are brewing in Congress, and this week we may learn a lot more about where lawmakers and federal law enforcement stand on the question of our digital privacy.

Tomorrow the House Judiciary Committee’s subcommittee on Crime, Terrorism, Homeland Security and Investigations will hear testimony from representatives of law enforcement, industry and the academy on the subject of warrant requirements for our digital communications. The Hill’s technology blog tells us more:

Revising the law to protect all electronic communications, regardless of how old they are, is a top goal for Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said earlier this month that modernizing the privacy act to "reflect our current digital economy" will be a priority for his committee. Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Texas) and Suzan DelBene (D-Wash.) have introduced legislation that would require police to obtain a warrant before accessing private online communications or mobile location data.

A major first step towards bringing the Bill of Rights into the digital age is updating ECPA to mandate adequate privacy protections for our online communications.

Thankfully, a wide variety of diverse interests support reform, including powerful elected officials from both sides of the aisle. Among the corporations and organizations working together for Digital Due Process are unlikely allies such as the ACLU, Americans for Tax Reform, Apple, AT&T, Dell, Ebay, Freedom Works, Google, Microsoft, Oracle, Reddit, and the US Chamber of Commerce.

We know where we stand, and it’s simple: Congress should require a warrant for government access to our digital communications information.

As for the FBI’s position? Let’s hope the bureau has evolved on digital privacy since last year, when it told a court that we lowly proles have "no privacy interest" in the information our cell phones communicate 24/7. 

Either way, we will need to put up a fight to win. As Frederick Douglas famously said, "Power concedes nothing without a demand." Help your elected officials muster the courage they may need to defy the FBI, and make that demand now.

Tell the government: if you want access to my emails, get a warrant.

© 2021 ACLU of Massachusetts.