Did you know that the government can get your emails by going straight to your internet service provider and serving them with a subpoena? No warrant needed. No judge involved to curb abuse. Not even an accusation of wrongdoing. It’s a hold-over from the outdated Electronic Communications Privacy Act (the relevant parts of which are at 18 U.S.C 2701-2705). (And contrary to the title of this post, it applies to state government agencies as well.)
Surprisingly doing something useful (and doing it unanimously), the House of Representatives recently passed H.R. 699, the Email Privacy Act. It would require government agencies to obtain a search warrant before accessing emails and other electronic communications. Senators are calling for the Senate to take take up the measure soon.
In an Op-Ed opposing the measure, SEC Chairwoman Mary Jo White bemoaned the possible loss of access. She noted that the law now requires the SEC to notify account holders when it serves an administrative subpoena, giving them an opportunity to go into court and file a motion to quash.
But she ignores the fact that such motions are rarely granted because the SEC (or any other agency) need only assert that the requested information may be relevant to an ongoing investigation. It’s an easy standard and not something an individual can usually contest.
Moreover, the provision puts the onus entirely on the individual to protect her private information, forcing her to spend money on lawyers just to protect what would be beyond the government’s reach if it was located in her home rather than in cyberspace. And in the process, the individual must acknowledge that the email account actually belongs to her.
(We could have an extended discussion here about the Fifth Amendment, act of production immunity, and more, but we’ll leave that aside for the moment.)
As a compromise, Chairwoman White suggests that civil law enforcement agencies (e.g, the SEC, FTC, etc.) be allowed “to seek a court order similar to a criminal warrant and give notice to the individual with the opportunity to challenge the request in court.” While it’s an interesting idea in theory, White does not suggest what standard would apply before such an order would issue. Presumably she would oppose requiring the SEC to show probable cause as is required for criminal warrants. And again, it appears to put the onus on the individual to protect her privacy.
Further, where would this proposed authority end? What is the justification for giving the SEC the ability to get a warrant for your emails but not for your car or your storage locker or your home? It’s not hard to imagine Chairwoman White or some other agency head coming back next year to ask for more. Suddenly our civil enforcement agencies would start to look no different than our criminal investigators.
Chairwoman White suggests that the Email Privacy Act will hamper the SEC’s ability to catch those who engage in “Ponzi frauds, insider trading, and accounting fraud.” Here’s the reality: if the SEC is chasing those types of people, the FBI, IRS, or another criminal investigator is not far behind. In fact, they are usually working in tandem. And there is nothing to prevent criminal law enforcement from sharing the results of a search warrant with civil law enforcement (it’s not like Grand Jury material).
Contrary to Chairwoman White’s the-sky-is-falling article, the SEC and every other civil enforcement agency will be just fine if the Email Privacy Act passes. Crooks are not suddenly going to get away with more crimes; warrants are notoriously easy to get. Instead, the average citizen might sleep a little easier at night knowing that government agents need to meet a slightly higher burden before rifling through our private correspondence.
It appears that Congress is about ready to update our privacy laws to bring them in line with the digital age. I suggest calling/emailing your senator and urging them to follow their House colleagues.