Given the rapid advances in technology – and the way Americans constantly use that technology – it’s troubling the federal Electronic Communications Privacy Act of 1986 has not been updated to better protect privacy rights. The privacy act was written at a time when few people knew about email and even fewer used it. Now, three decades later, most folks are sending and receiving emails daily.
However, under the law those emails are no longer considered private after six months.
Yes, the electronic privacy law contains what is know as the “180-day rule.” This permits government officials to treat any emails, text messages or documents stored on remote servers (the cloud) as “abandoned,” which means they are accessible using administrative subpoena power. And even electronic documents deleted from Gmail and Dropbox accounts could be retrieved by federal officials if copies exist on a third-party server.
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“The government is essentially using an arcane loophole to breach the privacy rights of Americans,” said Republican U.S. Rep. Kevin Yoder of Kansas.
“They couldn’t kick down your door and seize the documents on your desk, but they could send a request to Google and ask for all the documents that are in your Gmail account. And I don’t think Americans believe that the Constitution ends with the invention of the Internet.”
Exactly. Action is needed, and needed now, to reflect the advances in electronic communication.
Bipartisan legislation was introduced earlier this month by Yoder and U.S. Rep. Jared Polis, a Colorado Democrat, mandating government agencies and law enforcement obtain search warrants based on probable cause before cybersnooping. Similar legislation – also bipartisan – has been introduced in the Senate by Republican Mike Lee of Utah and Democrat Patrick Leahy of Vermont.