D.C. Council member David Catania, I-at large, deserves credit for sponsoring local legislation that would prevent local law enforcement from snooping around in District residents' private email accounts without a search warrant.
This should be a no-brainer. The Bill of Rights specifically protects citizens from "unreasonable searches and seizures" of "their persons, houses, papers and effects" -- and private email communication easily fits under both of the last two categories.
When there is probable cause a crime has been committed, the police have to present a sworn affidavit to a judge and obtain a search warrant before going through a suspect's home, car, office or personal documents. Email and other electronic communications stored online are no different. As the council member correctly noted last week, "while emails may not be physical papers when sent, they are nonetheless private communications that deserve and require the protection of the Fourth Amendment."
Catania's attempt to erect a local roadblock against inbox snooping came just as Congress sent President Obama a bill allowing Netflix users to automatically display their choices on Facebook. Unfortunately, the bill was stripped of a provision passed by the Senate Judiciary Committee in November that would have required investigators for the first time to obtain a warrant before searching private emails -- just as they do when they physically go through a suspect's house, car or computer hard drive.
They currently only need an administrative subpoena based on "reasonable grounds to believe" any information they find might be helpful to an investigation to force an Internet service provider to hand over copies of a suspect's opened and unopened emails, provided they've been stored on a third-party server for longer than six months. As Catania pointed out, this is a textbook case of the law lagging far behind available technology.
The 1986 Electronic Communications Privacy Act needs to be updated to reflect how private email data is stored. CNET reports that Internet users currently have more privacy if their emails are stored locally rather than in the "cloud," which makes no sense. Yet members of Congress failed to correct this obvious discrepancy.
It's an unusual but welcome happenstance when at least one member of the D.C. Council, a legislative body not known for its aggressive defense of the Bill of Rights' other nine Amendments, is willing to step up and provide much-needed leadership on digital privacy that's so shamefully lacking on Capitol Hill.