Privacy advocates are hailing the passage of a bill by a U.S. Senate committee last week as a step in the right direction. The bill extends online privacy protections for email, Twitter direct messages, Facebook emails and other social media information. But that doesn't mean those messages are any better protected today than they were a week ago.
The old rules will still hold for at least the next several months. And even if the law passes, in the bill's current form, it won't cover all the ways that people can read your messages.
The privacy bill — actually an amendment attached to another bill dealing with video sharing — has been in the works for more than a year, making little progress. The Senate Judiciary Committee approved both the main bill (HR 2471) and the email amendment just last week. If enacted, the new amendment would require law enforcement and government agencies to get a warrant before accessing people's online communications through Google, Yahoo, Twitter or any other company that provides email or other messaging services to the public.
The bill probably won't make it to the Senate floor before the end of the year, an aide to the bill's author, Sen. Patrick Leahy, D-Vt., told TechNewsDaily. It then goes to the House. The email privacy amendment may be revised by lawmakers who think it needs provisions to allow police to read messages without warrants in case of certain crimes, such as rape and kidnapping.
Meanwhile, the old rules still apply, and it can be hard to get a handle on just who can read someone else's communications, and when.
The 1986 Electronic Communications Privacy Act, which Leahy's bill is designed to amend, is complex — courts have interpreted it differently — and designed for another time. TechNewsDaily asked Jennifer Granick, director of civil liberties at the Center for Internet and Society at Stanford Law School, and Derek Bambauer, who teaches Internet law at the University of Arizona, to walk us through it and related laws.
So who can read your email and social media messages?
- With a warrant Law enforcement and government agencies can always read your email if they have a warrant. They get the warrant from a judge, who requires them to show there's probable cause reading an email will help them find evidence of a crime. It's much like searching an office or house. The new legislation won't change that.
- Without a warrant Law enforcement and government agencies can sometimes read your email if they have less than a warrant. Right now, law enforcement could get a person's email with less than a probable cause warrant if the email meets two requirements. First, the email has to be more than 180 days old — a weird holdover from the 1980s, when people didn't usually save messages in their inboxes for long periods of time. Second, the agency has to present evidence that reading the email would be helpful during a criminal investigation. Leahy's bill aims to eliminate this use of warrantless email-reading.
- "Electronic storage" technicality Law enforcement and civil parties could also get a public email provider to turn over messages with less than a warrant if the email isn't considered "in electronic storage." But what exactly that means has varied between courts, Granick said. The 9th Circuit Court of Appeals, for example, has defined electronic storage widely, ruling that anything kept in an inbox is in electronic storage. The Supreme Court of South Carolina, on the other hand, has ruled that read emails are not in electronic storage and therefore can be read without a warrant. The Department of Justice argues that read, deleted and draft messages — such as the unsent draft email that Gen. David Petraeus and Paula Broadwell used for intimate messages — aren't in storage. At least one court has ruled that there's another form of legal protection for emails beyond statutory laws. In 2010, the 6th Circuit Court of Appeals held that reading emails without a warrant violates the Fourth Amendment, which protects Americans against unreasonable searches and seizures.
The amendment, even if passed, will not affect some situations:
- Civil cases During a civil, rather than criminal, case such as a divorce, the court may order a person to release his digital messages.
- Work emails Work emails usually aren't considered private if a company provides the email service. Some companies will outline that in their handbook; others might explicitly ask employees to sign something that waives their right to email privacy. "We live in a world of employment at will," Bambauer said. "You have a right not to turn things over to your employer. Your employer has the right to fire you in response."
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