The Fourth Amendment grants the government the right to conduct searches and seizures if it can persuade a judge it has probable cause that a crime has been committed. This has been the framework for law enforcement officials since the Bill of Rights was ratified in 1791.
What may come as a surprise to many is that the rules restricting the NSA are actually stricter than the rules for local police departments. In order to read individuals’ email or obtain their documents stored online, the NSA needs an order from a judge. On the other hand, local police, the DEA, and the IRS, under the Electronic Communications Privacy Act of 1986 (ECPA), have claimed a warrant isn’t needed. ECPA reform would fix that.
Laws protecting Americans’ privacy online have not been updated since 1986, years before the Internet was widely used by the public. So, police are able to view any email older than 180 days without a warrant. Civil liberties groups argue that laws need to be overhauled in order to protect Fourth Amendment rights, which in turn would prevent police from carrying out unreasonable searches and seizures. “This is an important issue because it’s a core constitutional issue. Right now the government is using ECPA [The Electronic Communications Privacy Act] to obtain Americans’ emails without a probable cause warrant,” said Mark M. Jaycox, a policy analyst for the Electronic Frontier Foundation (EFF).
The EFF is one of the 29 civil liberties organizations who launched the online advocacy campaign known as “Vanishing Rights.” The project’s goal is to raise awareness in regard to this issue and to urge Congress to overhaul the 27-year-old Electronic Communications Privacy Act.
The law does prohibit warrantless access to various types of electronic communication, including “signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.” The problem is that the Internet didn’t really become a prominent feature in U.S. homes until the mid to late 1990s. According to the Pew Internet Project, in 1995 only 10 percent of U.S. homes had Internet access and that was nine years after the law was passed.
The FBI guide states, “. . [I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the email has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney,” Consequently, if an individual prints out an email, the police would need a probable cause warrant in order to obtain a copy of the correspondence. But, they are free to read any email online as long as it’s at least 180 days old.
The Sixth Circuit Court of Appeals is in agreement with the argument that email is protected by the Constitution. Congress simply needs to follow suit and reaffirm Americans’ core constitutional rights. But, email is just one element of the overall problem. The ACLU has reported that a bevy of correspondences on social media are also unprotected from warrantless government surveillance.
There is currently a proposal in Congress that would do just that. The Email Privacy Act is currently being debated in the House of Representatives and already has 137 co-sponsors — 96 Republicans and 41 Democrats. In addition to that, a law was recently passed in Texas which requires law enforcement to get a warrant before accessing email. California and Massachusetts also have similar legislation pending.
There are tools law enforcement can use to make suveillance a lot easier. So-called “open source intelligence” (OSINT) is becoming prevalent, and not just at the national/international level. New tools now perform the mining of everything from Facebook posts to tweets, so that law enforcement and corporations can see what the locals are saying.
Due to the vast amount of social media posts, some tools don’t even attempt to provide a complete picture while others do. Enter BlueJay, the “Law Enforcement Twitter Crime Scanner,” which provides real-time, geo-fenced access to every single public tweet. Local police are able to monitor #gunfire, #meth, and #protest (actual examples) in their respective jurisdictions. BlueJay is a product of BrightPlanet. BrightPlanet’s tagline is “Deep Web Intelligence” and the board of directors includes people such as Admiral John Poindexter.
But, the technology can also be used on a wider scale. BlueJay recommends using the tool to, “monitor large public events, social unrest, gang communications, and criminally predicated individuals” in order to “identify potential witness and indicators for evidence” and “track department mentions.”
Much has changed technologically since 1986. Now, progressively more of our personal information, business documents, and communications are stored online. It is not uncommon to find well over a years’ worth of email in webmail accounts, in addition to private photos, calendars, drafts and many other sensitive materials. It’s up to Congress to act now and make the needed revisions to existing, yet dated, privacy laws. Otherwise, government agents will continue to access this information without a warrant.