Attorney General Eric Holder is on record that the Department of Justice supports legislation that generally would require the government to get a probable-cause warrant to read your e-mail.
We're having this discussion because federal law, dating to the President Ronald Reagan administration, allows the cops to access your e-mail without a warrant if it's been stored in the cloud at least six months. For years, Congress has been debating changing the law that we'd expect to be the norm in some third-world, despotic nation.
Now its time for the United States, and Holder in particular, to show the world, and the American public, that he means what he says. It's time for the Justice Department to begin honoring the Fourth Amendment and start getting a warrant to access the public's e-mail and other stored content, civil rights groups say.
The Las Vegas betting line is that Congress is too sheepish to grant more privacy rights, which has been illustrated time and again with warrant proposals dying slow, quiet deaths over the years. But Holder can fix that, as least as far as the Justice Department is concerned, with a single edict directing federal prosecutors to respect the public's civil liberties.
"If he wants to do something responsible here, he should publicly pledge that the government would get a warrant," said Catherine Crump, a staff attorney with the American Civil Liberties Union.
The Justice Department did not respond for comment.
Under current law, the 1986 Electronic Communications Privacy Act, the government can obtain e-mail or other documents without a warrant as long as the data has been stored on a third-party server — the cloud — for 180 days or more. The government only needs to show, often via an administrative subpoena, that it has "reasonable" grounds to believe the information would be useful to an investigation. That's a far cry from the probable-cause standard required for a warrant.
Initially, ECPA provided privacy to users, but that privacy protection eroded as technology advanced and people began storing e-mail and documents on servers for longer periods, sometimes indefinitely. The act was adopted at a time when e-mail wasn't stored on servers for a long time, but instead was held briefly on its way to the recipient's inbox. E-mail more than 6 months old was assumed abandoned.
The attorney general, the nation's top attorney, told the House Judiciary Committee during a Justice Department oversight hearing on May 16 that the warrant requirement "is something that I think the department will support."
To be sure, there are legislative proposals in the House and Senate requiring warrants. But again, don't hold your breath awaiting legislative action.
The last time this came up -- in January -- the legislation mutated into a package that granted the public the right to automatically display on their Facebook feeds what they're watching on Netflix.
That was great news for those wanting to flood their Facebook feeds with whatever time-suck they're watching. But it was bad news for privacy. Lawmakers cut from the legislative package language requiring the authorities to get a warrant to read your e-mail or other data stored in the cloud.
What sailed through was the tinkering of the Video Privacy Protection Act, which had outlawed the disclosure of video rentals unless the consumer granted consent on a rental-by-rental basis. That prohibited Netflix customers from allowing their Facebook streams to automatically update with information about the movies they were viewing, though Spotify and other online music-streaming customers always could have consented to the automatic publication on Facebook of the songs to which they were listening.
What's more, some internet service providers like Google, Microsoft, Yahoo and others are requiring a warrant. The authorities are acquiescing because of some conflicting case law.
Certainly, Congress could settle it once and for all. But history tells us that's not happening any time soon.
That's why it's important for the attorney general to step up to the plate.
"Holder," said Nate Cardozo, a staff attorney with the Electronic Frontier Foundation, "should put his money where his mouth is and seek a warrant in all cases."
