A Fourth Amendment Application for the Internet

Originally posted on Politico.com

Technology has changed dramatically since 1986. With free, unlimited email storage and high-speed broadband service widely available, we no longer have to download email onto our hard drives. Instead, we indefinitely store our email and other personal effects — private reflections, financial records, photographs and love letters — in the “cloud,” where the power and flexibility of massive servers are available for free or at very low cost.

The essential elements of ECPA have not changed since 1986, and the courts have failed to keep pace, saying remarkably little about the Constitution’s application to new technology. Hence, the government can contend ECPA gives it the authority to ignore your privacy to an extent that would have shocked the framers of the Constitution.

Our proposal is simple: All private communications and documents stored online with service providers should have the same protections from unreasonable search and seizure as material locally stored. If government agencies want to read emails, they should go to court, show probable cause to believe a crime is being committed and obtain a search warrant just as they would for postal mail and telephone calls.

We do not intend our reforms in any way to impede investigations of terrorism or serious crimes such as child pornography. We leave in place laws regarding child pornography. We preserve emergency exceptions for cases posing immediate threat of harm. We do not touch authorities for national security investigations and international terrorism. Our reforms focus on ordinary investigations, and all we are saying is that the warrant standard established by the Constitution for privacy in the physical world should also protect privacy in the digital world.

Today [Sunday] we announce the launch of Digital 4th, an effort by the Center for Democracy and Technology, the American Civil Liberties Union and Americans for Tax Reform to give digital content the warrant protection the Fourth Amendment to the Constitution requires.

It is time to reaffirm in law what most Americans assume is an essential guarantee of living in the U.S.: that government power should be subject to basic checks and balances.