Congress Has a Chance to Bring Email Privacy into the 21st Century

Imagine the government claiming it can open a box of your old letters without a warrant simply because you kept them for more than six months.

Absurd? Under a Reagan-era federal law, that is roughly the legal logic applied to your emails.
The Electronic Communications Privacy Act (ECPA), passed in 1986, was a landmark bill that established guardrails for the government’s treatment of private communications in the emerging digital world. At that time, emails were usually downloaded to a personal computer and deleted from servers. That law thus contained a loophole that allowed government agencies to obtain stored electronic communications more than 180 days old without a warrant.

One tech provider warns that today that “Gmail will NOT automatically delete your old emails after any timeframe. Messages from 5, 10, or even 20 years ago will sit in your account forever unless you manually remove them.”

Technology changed. The law didn’t.

That is why PPSA applauds Reps. Warren Davidson (R-OH) and Suzan DelBene (D-WA) and Sens. Mike Lee (R-UT) and Ron Wyden (D-OR), for updating the law with the bipartisan Email Privacy Act. The bill would require the government to obtain a warrant before accessing the contents of Americans’ emails and other stored electronic communications, regardless of how long they have been stored. It would also permit service providers to notify customers when the government seeks their information, unless a court orders otherwise.

“The Fourth Amendment is clear: the government must get a warrant before searching an individual’s private property, including written communications,” Rep. Davidson said.

Sen. Lee similarly noted that “Americans should not lose their Fourth Amendment protections simply because their private communications are stored with a third-party provider.”

They are exactly right.

Our emails can contain medical information, financial records, family conversations, political discussions, and the intimate details of our daily lives. The idea that constitutional protection should diminish after 180 days is a relic of the dial-up era.

This bill also demonstrates that privacy reform remains one of the few issues capable of bringing together serious conservatives and progressives. These legislators deserve our praise for recognizing a simple principle: a private communication does not become government property as it ages.
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Congress should pass the Email Privacy Act and apply the Fourth Amendment to the reality of 21st century technology.

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