Equality for Email!

By: ACLU of Northern California

By Christopher Calabrese
Washington Legislative Office

Today Sen. Patrick Leahy (D-Vt.) took an important step toward giving all of us who live our lives online a measure of true digital privacy. He announced (via Twitter — not bad for one of the senior members of the Senate!) that he was filing the Electronic Communications Privacy Act Amendments Act of 2011. It may not roll off the tongue, but it does do something even better — it protects all of your private digital communications with a search warrant backed by probable cause.

I know you may have thought they already were protected right? What's the difference between a letter and an email? Or photos held on your hard drive versus photos held on a photo site? Well as it turns out, according to existing law, quite a lot.

Electronic Communications Privacy Act (ECPA) was passed in 1986 and hasn't been substantially updated since. Heck, 1986 is not only when Top Gun came out, it's also before the World Wide Web existed. That leads to some very strange results. I think we would all agree that email deserves the same privacy protection from law enforcement investigations as a letter, but under the current law, an email more than 180 days old gets less protection than a more recent one. It also means that when your information is held by a third party (like basically everything on the web!) it can be grabbed with very little judicial review. Police can often read your email, texts or Facebook page as long as they are considered "relevant" to an investigation.

Another thing that we barely had in 1986 — cell phones. Since that time they have become one of the go-to tools for law enforcement when they want to track your whereabouts. The standard for accessing these records is even more complicated, but it is often incredibly low. But as we've all learned in recent weeks, our phones are basically portable tracking devices. Sen. Leahy's bill would also require a warrant if police wanted to start using your phone to track you.

We've been pushing most of these reforms as common sense and have been pretty surprised at law enforcement's resistance to them. Honestly we'd like to see the law go further. The ACLU thinks major reform should include a warrant for your past location - not just current tracking, reporting requirements on how police use these legal tools, and a suppression remedy (where the court would bar police from using any of these records if they violate the law when they collect them). We'll be fighting for all of them as this bill moves forward.

But Sen. Leahy has to be commended for taking the first step. We are all moving our lives online (it's a cliché because it's true) and we think it's important that our constitutional protections follow suit.