Home Judge’s Opinions Support builds for revising email privacy protections

Support builds for revising email privacy protections

by Andrew P. Napolitano
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By Perry Chiaramonte Published November 27, 2012 FoxNews.com

Law enforcement officials will try to make their case for leaving in place a 25-year-old email privacy law critics call woefully outdated as the Senate continues to weigh adding new protections to safeguard digital communications.

The Senate Judiciary Committee is debating a proposed revision of the Electronic Communications Privacy Act, which once kept digital correspondence reasonably confidential, but has, according to critics, been left in the dust by the Internet Age. When first enacted in 1986, few people kept old emails that can now be stored cheaply and indefinitely. Yet the law still requires only an administrative subpoena for law enforcement to access emails older than six months. Committee Chairman Patrick Leahy, D-Vt., wants the law revised to require a court-issued warrant, and also has other changes in mind.

“This critical privacy law is significantly outdated and outpaced by rapid changes in technology and the changing mission of our law enforcement agencies.” Leahy said Monday

Leahy played a key role in drafting the original ECPA, long before technological advances like cloud storage and hyper-fast Internet connectivity were a reality.

“When I led the effort to write the ECPA more than 25 years ago, no one could have imagined that emails would be stored electronically for years or envisioned the many new threats to privacy in cyberspace," he said. "That is why I am working to update this law to reflect the realities of our time and to better protect privacy in the digital age.”

Fox News Senior Judicial Analyst Judge Andrew Napolitano said the law must be updated in order to preserve the intent of the men who framed the Constitution.

"The Fourth Amendment protects the right to be left alone from interference by the government," Napolitano said. "While the Founders could not have contemplated the digital era, it is clear that their values and the requirements in the Fourth Amendment–a judicially-issued search warrant upon a finding of probable cause–are valid and vibrant today. All rational persons want their privacy protected and our privacy is no less protectable because we use the Internet than when we use the mails.

"If privacy is an impediment to law enforcement, it is a good impediment," Napolitano added.

The proposed revisions have gained support from across the political spectrum, with conservative lobbyist Grover Norquist and the American Civil Liberties Union's Laura Murphy penning an editorial for The Hill backing it.

“Today, if the police want to come into your house and take your personal letters, they need a warrant," the pair wrote. "If they want to read those same letters saved on Google or Yahoo they don’t. The Fourth Amendment has eroded online.

“…At the time ECPA was passed, digital storage was expensive. Emails were typically discarded or downloaded within six months of being received, and sensitive material was stored on paper or a local hard drive. Today, storage is cheap and seemingly endless, so why would you delete an important email already stored in a simple searchable format,” reads a question posed by the unlikely pair later in the column.

Officials in law enforcement and some lawmakers have pushed back, saying the proposed changes would impede vital investigations. The Judiciary Committee ranking Republican, Iowa Sen. Charles Grassley, has voiced concern the bill would create “new barriers.”

Norquist and Murphy dismissed that concern, writing that the new bill would actually alleviate confusion on the law.

“The medium, in this case, should not matter," they wrote. "The content is personal information that deserves full privacy protection consistent with the Constitution. If law enforcement would like to see your electronic documents stored with an Internet company, then they should need a warrant.”
“We recognize the importance of ensuring that government has the tools required for effective law enforcement, but extending warrant protection to cloud services and email that's more than six months old will not significantly impede investigations.”

Revisions could possibly be made at Thursday’s meeting to the bill as well as a Committee vote on the bill, an aide to the Judiciary Committee told FoxNews.com.



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