ICPA: Warrant Required for Email Content

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Posted by Katie McAuliffe on Wednesday, October 25th, 2017, 9:00 AM PERMALINK

The Fourth Amendment requires government officials to get a warrant to search citizens’ private property, but as technologies and times change, government will inevitably do its best to creep into areas when it has no right. This is particularly evident in the case of relatively common technologies like email, where the government still relies on the 1986 Electronic Communications Privacy Act (ECPA) to regulate the government’s need to obtain a warrant in the digital sphere.

Under the ECPA, communications stored on third party servers beyond 180 days are considered “abandoned” and require only a subpoena for law enforcement to access. What’s worse, this consideration applies to all online communication, not just email. This ranges from Facebook messages to texts and even GroupMe chats. Changes are needed to this Act to prevent government authorities from skirting around Constitutional legal hurdles and violating the privacy of American citizens.

The International Communications Privacy Act (ICPA) would set up a clearer, modern legal framework for these types of government actions. This Act was introduced as S. 1671 in the Senate by Sen. Orrin Hatch (R-Utah) and is cosponsored by Sen. Dean Heller (R-Nev.) and Sen. Christopher Coons (D-Del.). Companion legislation, H.R. 3718, has been introduced in the House by Rep. Doug Collins (R-Ga.) and Rep. Hakeem Jeffries (D-N.Y.). Americans for Tax Reform and Digital Liberty, in coordination with 11 other conservative groups, have released a letter in support of this legislation.

This Act would require officials get a warrant to access electronic communications stored with third party service providers, regardless of where that person or their information is located. It would also set up a framework for international searches, allowing US government officials to coordinate with and receive input from other countries about the purpose of their searches and US courts to weigh in on the validity of a search if necessary.

Not only does this framework respect US and international law, it limits the government’s ability to infringe upon the Fourth Amendment rights of American citizens by updating a telecommunications law that hasn’t been changed since texting was invented. This makes us safer by preventing government officials from being overwhelmed by too much information – as is the case when searches do not have to be narrowly tailored – and discourages foreign nations from retaliatory abuse of Americans’ privacy as well.

Lawmakers in 1986 never could have considered the cloud computing and storage that is prevalent in modern communications. Rather than downloading and deleting our emails, common in 1986, we create, share, and store a preponderance of personal information online.

Continuing to leave this 31-year-old loophole in place on an issue of such importance is unacceptable of lawmakers.

When you give government an inch, it does all it can to stretch and squeeze its way past its limits, but passing the ICPA would create certainty and a detailed process by which the government could no longer hide behind vague, out-of-date policy.

Photo Credit: Tal ETouch

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