It's been a rough day so the boss lets you head home early. As you near your house, you see an unmarked van idling in your driveway. You park on the street and carefully open your front door to find a team of government agents digging through your bookcases, file drawers and medicine cabinets. Mail is scattered everywhere.
“Who are you and what are you doing?” you ask.
“Oh… you weren’t supposed to know about this,” the bureaucrat replies. “You never interrupted us before. Get off work early?”
“But what are you looking for?”
“That’s none of your business. Goodbye.”
This is the experience of many citizens of corrupt and totalitarian countries around the globe. But now it’s the experience of a growing number of Americans every day.
How can this be? Doesn’t the Fourth Amendment guarantee against “unreasonable searches and seizures” without a warrant? Luckily for the government, there’s a big loophole. A digital loophole.
In 1986, Ronald Reagan signed the Electronic Communications Privacy Act (ECPA) in order to extend our Fourth Amendment rights into the new world of electronic communications.
Back then, the precious few who had email downloaded any useful messages from the server and stored them on their own hard drive. Those messages left unsaved for 180 days were considered abandoned and open to government searches without a warrant.
But email no longer works that way. The vast majority of computer users now store their email in "the cloud” — sitting somewhere on an online server, accessible 24/7 and for a lot longer than 180 days.
A law created to protect online privacy is now being used to destroy it.
Google revealed that the U.S. government made nearly 8,500 requests for user data in the last half of 2012. This is up 136 percent from the last half of 2009 when the company started tracking this data. In two-thirds of these cases, the requests are made using ECPA subpoenas, which do not need a court order.
Twitter isn’t immune either. Of the 815 requests for Twitter user info in the past six months, 81 percent of these “unreasonable searches and seizures had no warrant to back them up. And since both of these digital behemoths lobby the federal government they have serious motivation to meekly follow D.C.’s orders.
Getting a search warrant is a pretty high bar. Before the government can pore through your mailbox or wiretap your phone, they need to do some serious legwork. But now these same people can “wiretap” your email or social media networks without showing the slightest probable cause. And the out-of-date ECPA is making it easier than ever.
It’s past time for the Fourth Amendment to apply to digital “papers and effects” as well as our physical ones. Tell President Obama and Congress to stay out of our email folders and our online lives.