Google Supports Email Privacy Act

The Fourth Amendment to the United States Constitution protects all of us from unreasonable searches and seizures – at least it’s supposed to. But the definition of what constitutions “unreasonable” has changed over time, and most observers will tell you that the protection, in some areas, has been whittled away over the past 20 years or so, to the point where it is barely recognizable. Which brings us to the Email Privacy Act, a bill now pending in Congress.

As currently proposed, the act would require law enforcement officers and agencies (and other governmental departments) to obtain a warrant before being able to require third-party providers – Google, Yahoo, and others – to turn over the contents of electronic communications, including emails. Here’s the background.

For anyone who doesn’t already know it, deleting an email on your computer does not purge the email from the cloud-based storage system in which it exists. Absent any protection against government searches and seizures, all your emails and other electronic communications could be obtained on demand by law enforcement. While some protection was afforded under the Electronic Communications Privacy Act (EPCA), passed in 1986, that law permitted the government to obtain our emails without a warrant if they had been stored for more than 180 days. And while one federal appeals court has held that that provision violates the Fourth Amendment, the 180-day exception remains on the books. Proponents of the Email Privacy Act say the new law is needed to codify the court decision and to make sure that the warrant requirement is applied uniformly throughout the country.

A Google representative testified before the House Judiciary Committee on the issue, stating that the new law was necessary in order to clarify existing law, and to avoid inconsistent privacy protection for cloud service users.

We should tell you that there are exceptions to the warrant requirement, including the fact that the new law would have no effect on investigations held under the Foreign Intelligence Surveillance Act. The debate at this point appears to be how, and to what extent, the law will deal with applications for information in emergency situations.

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