June 18, 2013 at 5:22 PM ET
Texas residents will have a little more protection from the prying eyes of local law enforcement than the rest of America starting in September. A law that takes effect in the fall ends warrantless email searches by state law enforcement officials, in a step that might have implications for email snooping laws around the country.
The new law cancels out a Texas provision that had allowed state, county, and local cops to access emails stored on third-party services like Gmail or Yahoo under certain circumstances without requiring a judge's finding of probable cause.
It was passed by the Texas statehouse long before the recent string of disclosures about the National Security Agency allegedly snooping on U.S citizens, but signed into law on Monday by Texas Gov. Rick Perry. The Texas law is very limited, however: Federal law enforcement officials can still access some Texas residents' third-party emails by issuing a simple subpoena to the companies where the information is stored.
But the action in Texas, the first such anti-email-snooping legislation in the nation, might create momentum for a proposed update to similar provisions in federal law.
Privacy advocates cheered the measure.
"Given the central role that email plays today in business and personal communications, and given the reasonable expectation of privacy that Americans have when it comes to those emails, judicial review should be required before law enforcement obtains the content of any citizen’s email," said Rob Douglas, a former Washington D.C. prosecutor and privacy law expert. "The federal government – along with all other states – should follow Texas’ lead and require warrants before the police can seize the content of any email."
How both Texas law and federal law came to allow warrantless email searches is a tortured tale that has largely been ignored during the current NSA controversy. Much of the discussion in the wake of leaker Edward Snowden's disclosures has surrounded the distinction between access to information about communications — metadata — and the content of those communications — which generally require a wiretap order to obtain. (See previous story on the hazy distinction between listening and watching.)
There is another way that law enforcement can legally obtain the contents of communication, such as email, without a search warrant, however. It's permitted by the Stored Communications Act of 1986, which is part of the Electronic Communications Privacy Act. This part of the law only makes sense to people who recall the days of computer time sharing, when users at terminals remotely connected to centralized computers on a temporary basis.
In general, federal law holds that citizens who give information to third parties surrender their expectation of privacy for that information. That means in some cases that while government officials can't demand that you or your email recipient reveal contents of private messages without a warrant, those officials can ask Gmail or Yahoo for that data.
The Stored Communications Act draws a distinction between "Remote Computing Services" and "Electronic Communications Services." Basically, when citizens are temporarily using a remote computer to deliver a message, that data is protected the same way the contents of a letter are protected while in transit at the post office. But when emails leave their data on the servers of these third parties, they are now considered an electronic communication service and fair game for subpoena-wielding law enforcement officials.
Most states — including Texas, until now — have copycat provisions which grant the same access to local law enforcement.
This made some sense in 1986 when no one dreamed of storing thousands of emails on remote servers. Today, that's common. And while efforts to change federal law have been sluggish, federal courts have already taken steps in that direction. In 2010, the Sixth Circuit Court of Appeals ruled in U.S. vs. Warshak that this part of the Stored Communications Act was unconstitutional. Other courts have upheld the Stored Communications Act, meaning there is a court split that has yet to be settled by the U.S. Supreme Court, so it's unclear if the law applies nationally.
Google, however, currently acts as if the Warshak decision is law of the land. It announced after the circuit court ruling that it would require search warrants before handing over Gmail account contents requested under the Stored Communications Act.
There is little argument that the law, and the entire Electronic Communications Privacy Act, requires updating. Several updates have been proposed, most recently ECPA 2013, sponsored by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. Mike Lee, R-Utah.
But until Congress acts on the legislation, and the president signs it, those concerned about the prying eyes of law enforcement might consider relocating to the Lone Star State.