The Justice Department has been busy lately. Recently, they have urged Congress not to pass legislation sponsored by the internet coalition Digital Due Process, legislation that would allow emails stored in the cloud to be subject to 4th Amendment protection against unreasonable search and seizure. Currently, the only emails protected from warrantless search are those either stored on a hard drive, or those newer than 180 days old. This protection comes from the Stored Communications Act (SCA) of 1986.
That’s right. 1986. The rules we count on to protect our electronic communications have not been updated since the founder of Facebook was in diapers. The law was written at a time when emails were stored on hard drives, and only on clouds- external servers such as gmail or yahoo- long enough to go from sender to recipient and be downloaded. This is no longer the way email works, and it certainly doesn’t account for social networking sites (which is a whole other topic).
Imagine this scenario: Police want to seize your emails from the last three months. Whether these emails are on your hard drive or on the gmail server, the police must get a warrant. Now let’s change the scenario. Police want to seize your emails from a year ago. Now you’d better hope you downloaded them to your computer and deleted from the email provider. If these same emails, now a year old, are on the gmail server, police may seize them with no warrant.
Those who agree with the Justice Department say that warrants for email places an undue burden on law enforcement and government. Those who disagree say that no burden on the government can be considered “undue” if the alternative is reducing Constitutional rights. For all of us with email, this potential legislation is something to watch. Protection is important- but is privacy any less important?