Federal agencies might finally lose the power to read the emails of American citizens without a warrant, if congressional lawmakers can push a ban of the practice across the finish line.
“The government’s position has been that digital information stored online is abandoned by the account holders and therefore searchable and seizable by our government, like trash put out by the street,” Rep. Kevin Yoder, R-Kan., told the Washington Examiner. “And we know that not to be the case in terms of how Americans use email.”
Yoder was one of two House Republicans to introduce the Email Privacy Act in 2013, which requires federal officials to obtain a warrant before searching email accounts even when the emails are more than six months old. It didn’t go anywhere at the time, but the bill has picked up steam over the past year, and now boasts more than 300 House co-sponsors.
The bill would update the Electronic Privacy Act of 1986 to close a “loophole” that government officials have used to read old emails without a warrant. The justification for doing so is analogous to the arguments made in defense of bulk phone-record collection, as agencies believe that people have a “legitimate expectation of privacy” for online data housed on third-party email accounts.
“We are dealing with a specific void in the federal law that allows the government legally under federal law to read, search, retrieve, capture, any stored information on the server — like emails on someone’s Gmail account that are more than six months old — that allows them to take that information and retrieve it and use it,” Yoder said.
Privacy advocates notched a provisional victory in 2010, when a federal court held that it is unconstitutional for federal officials to force Internet service providers to hand over emails in the absence of a warrant.
“Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection,” the judges concluded. But that ruling applies only in the states that fall within the Sixth Circuit. The Justice Department didn’t appeal the ruling to the Supreme Court, where a defeat would have set national precedent.
Unlike the phone record controversy sparked by the revelations of National Security Agency leaker Edward Snowden, the agencies that use this email loophole aren’t trying to thwart terrorism.
“If a governmental agent in the IRS wants to read an average American’s emails, in the past all they’ve had to do is send a request to the Internet service provider,” he said. “This violation of individual privacy is so egregious because it is not being done for national security purposes. In many cases, it’s not even being done for criminal purposes.”
The bill has broad support in the House and Senate, but it will have to pass at least one more round of negotiations to be voted on and signed by President Obama.
Yoder said the idea of requiring a warrant for email searches pertaining to criminal cases is “pretty unifying,” but federal agencies such as the IRS and the Securities and Exchange Commission worry that it will undermine their ability to investigate civil infractions by giving people under investigation the opportunity to delete their emails.
“We’ve worked through the bill to ensure that they can put a freeze on the account, that the account holder — if they don’t respond to a subpoena — that they’re responsible for the same penalties they would be if they weren’t responding to a subpoena for printed documents,” Yoder said. “What we’re trying to do, ultimately, is treat email and paper mail the same under federal law when it comes to protection.”
