The US Constitution, a remarkable invention by some fairly progressive men – slave owners and repressors of women’s rights aside – was designed, in part, to protect citizens from an overreaching government. If you are a citizen of the United States your rights are precious and they are protected by the Constitution. You can’t be thrown in jail and held for the rest of your days because the Governor doesn’t like your family. Law enforcement can’t break into your home and search your papers and possessions on a whim. You can’t be arrested for speaking your mind. It is fundamental to being an American and we should all take great pride in our freedom and fight to protect our right to it.
The Fourth Amendment of the Constitution guards against unreasonable searches and seizures and requires a warrant, signed by a judge, and supported by probable cause. Even with a warrant, the search and/or seizure must be limited to the scope according to the specific information that law enforcement provided to the judge.
“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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[i]
There’s been plenty of case law on search and seizure, much of it at the Supreme Court level. One of the key elements is the “reasonableness” of the search as the Fourth Amendment protects against unreasonable searches. Law enforcement is also given some leeway when they see suspicious behavior that can reasonably be assumed to indicate criminal activity may be underway.
I’ll touch on the probable cause element, as this is crucial to where I’m heading. Under the Fourth Amendment, law enforcement must show that they have legally sufficient reason to believe that the search will uncover criminal activity or contraband. There are exceptions to every rule of course, and I won’t list them all here, but you can read about them on the all-powerful Wiki.
The Electronic Communications Privacy Act of 1986 protects our email while in transit and while stored on electronic devices and prohibits the use of devices that could trace or track it without a warrant. There’s a provision in the law that allows law enforcement to obtain email from a server if it’s older than 180 days but they always need a warrant to get it from your computer.
Digital Due Process, a diverse group of privacy advocates dedicated to modernizing surveillance laws for the Internet age, are trying to get the ECPA updated to provide the same privacy protection to all email, whether it’s stored on a server or a personal computer, and regardless of its age. President Obama’s Department of Justice is fighting this proposal. [ii]
You can read the DOJ’s entire argument on line and I encourage you to do so. But here are a few choice bits of their logic that should anger every American:
“…in order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish.”
“Non-content information about a communication – also referred to as “metadata” – may include information about the identity of the parties to the communication, the time and duration of the communication, and the communicants’ location. During the early stages of an investigation, it is often used to gather information about a criminal’s associates and eliminate from the investigation people who are not involved in criminal activity. Importantly, non-content information gathered early in investigations is often used to generate the probable cause necessary for a subsequent search warrant. Without ready access to non-content information, it may be impossible for an investigation to develop and reach a stage where agents have the evidence necessary to obtain a warrant for a physical search.”
So what the government wants to do is to have access to whoever’s email they want, including whom the email is to, when it was sent and where the people are. They want to do that to see if they can generate the evidence needed for an actual warrant to search your email!
Now I know there are those who argue, “If you have nothing to hide you shouldn’t worry about it.” But that argument badly misses the point of the Constitution of the United States and surrenders your basic right to privacy against unwarranted government intrusion! It is unlawful and un-American for our government to have access to all of our electronic communication without so much as an iota of evidence that we might be involved in something illegal. It would be the same as if government officials showed up at your home while you were at work and opened your mailbox, read all your mail, wrote down all the information in it and then went to the next house on the block. It’s no different than the government listening in on your phone calls so they can see if you might be up to something, even though they have no evidence that you are. Not just yours, but everyone’s!
Finally, I’ll hammer away at Mr. Obama yet again. While I supported him strongly, and faced again with the choice of him or John McCain for President I’d make the same choice, he has not backed up his own words. In this interview with CNET, Senator Obama had strong positions on all things related to the Internet, electronic communication and privacy.[iii]
“Congress has debated the right approach to privacy protection for years. I will work with leading legislators, privacy advocates, and business leaders to strengthen both voluntary and legally required privacy protections.”
Well Mr. President, your Department of Justice apparently didn’t get the message.