COLUMN: Guarding Due Process and Electronic Privacy

May 2, 2016
Weekly Column and Op-Ed

The way Americans use technology to communicate has changed at an incredible pace since 1986. Thirty years ago, cellphones were gigantic, brick-like novelties. Few homes had personal computers. The term “social media” did not even exist. The Internet had existed for only a few years and was unknown to most Americans. To illustrate just how much times have changed in the intervening years, to quote one of my colleagues in the House of Representatives, “Cabbage Patch dolls were flying off the shelves.” 1986 was a different time, but it was also the last time that the Electronic Communications Privacy Act (ECPA) was updated by Congress.

Fast forward to today, and the vast majority of Americans, young and old, use cell phones, emails, text messages, and social media apps to communicate with one another on an hourly basis. Only 10 million Americans had email accounts in 1986. In 2015, that number had grown to 232 million. Americans expect that their email inbox contents and text message exchanges are private and free from government snooping. Many would be surprised to know the extent to which privacy laws have failed to keep up in a way that protects Americans’ constitutional rights.

The Fourth Amendment of the Constitution states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…” If you thought that language guarding against unreasonable search and seizure applies to digital communications, under current law, you would actually be mistaken. The 1986 version of the ECPA treats digital information differently than paper information. Currently, the government may access any emails that are more than 6 months old without a warrant. This violates the expectations of Americans regarding their privacy rights, and it is unacceptable.

I cosponsored legislation, introduced by Rep. Kevin Yoder (R-KS), to protect Americans’ rights in a digital age. H.R. 699, the Email Privacy Act, would update the ECPA to improve privacy protections for electronic communications stored or maintained by a third-party service provider. Additionally, H.R. 699 requires the government to obtain a search warrant from a court in criminal investigations before a provider is required to disclose the content of communications, thus not impeding law enforcement’s efforts to protect the public.

I am pleased that H.R. 699 passed the House last Wednesday with unanimous bipartisan support. The update to the ECPA garnered unanimous support because it guards Americans’ privacy rights from overbearing intrusion by the government at any level. Technology may progress, but the constitutional principles protecting Americans’ individual rights from government abuse must remain constant.