The WasteWatcher: The Staff Blog of Citizens Against Government Waste

Make Vanishing Rights Reappear

The WasteWatcher is the staff blog of Citizens Against Government Waste (CAGW) and the Council for Citizens Against Government Waste (CCAGW). For questions, contact blog@cagw.org.


The government cannot come into your home and rifle through your personal belongings without a warrant or a subpoena authorizing such a search.  However, unless the outdate Electronic Communications Privacy Act (ECPA), which was enacted in 1986, is amended, files stored online with cloud computing vendors, email service providers and others may be subject to such unauthorized searches.  Under ECPA’s current provisions, hundreds of federal entities, including the FBI, DEA, and IRS, as well as state and local law enforcement agencies, can demand access to emails and documents stored in the cloud without a warrant.

Courts have struggled to apply the Fourth Amendment’s protection against unreasonable searches and seizures as technology has evolved, such as digital “papers” stored with third parties.  However, many providers, concerned about the rights of their customers, are already requiring a warrant from law enforcement officials who seek access to content.  These providers cite U.S. v. Warshak, a 2010 case in which the U.S. Court of Appeals for the District of Columbia determined that the Fourth Amendment protects email content stored by third parties.  Moreover, the U.S. Department of Justice has stated that it follows the warrant-for-content rule.

In 2012, the Supreme Court, in United States v. Jones, emphasized the legislature’s role in protecting constitutional rights in the information age.  “In circumstances involving dramatic technological change,” Justice Alito explained in his concurrence, “the best solution to privacy concerns may be legislative.”  He went on to note that legislative bodies are “well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”

In response to United States v. Jones, S. 1011, the Electronic Communications Privacy Act Amendments Act of 2011 was introduced by Sen. Patrick Leahy (D-Vt.).  In turn, a coalition of organizations, including the Council for Citizens Against Government Waste, launched VanishingRights.com to promote ECPA reform.  On March 19, 2013, the ECPA Amendment Act was reintroduced as S. 607 by Sens. Leahy and Mike Lee (R-Utah).

The House companion bill to S. 607, H.R. 1852, the Email Privacy Act, was introduced by Reps. Kevin Yoder (R-Kans.), Tom Graves (R-Ga.) and Jared Polis (D-Colo.) on May 7, 2013.  The Vanishing Rights coalition has re-launched on September 18, 2013.  This coalition of more than two dozen organizations is once again calling on Congress to reform ECPA.  The website contains information on the Fourth Amendment, why updating ECPA is important, and what individuals can do.

With each passing day, as more private information goes online, the need for ECPA reform becomes more urgent.  It is time to reform this outdated law to ensure that email and online documents are protected from warrantless searches.  Check out VanishingRights.com to see what can be done to achieve this goal.

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