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Stopping the Government from Reading Your E-Mail—A Commentary by Adam Cohen

The following commentary was posted on Time.com on May 31, 2011.

Stopping the Government from Reading Your E-Mail
By Adam Cohen

Is the federal government reading your e-mail?

That may sound outrageous, but it may well be perfectly legal. The Constitution protects your home, your car, and your body from unreasonable searches. But the courts have been much less clear about whether it protects your Gmail or Yahoo! Mail account. So while the courts continue to deliberate, Democratic Senator Patrick Leahy of Vermont is now trying to give email new protections by upgrading the main federal Internet privacy law.

E-mail is one of the biggest battlegrounds in privacy law — and for good reason. People use it to communicate with their most intimate friends and relatives — and they say many things they wouldn't want the government to know about, from talking about having cancer to insulting the President. Still, one of the revelations of the NSA spying scandal a few years back was that the government was intercepting a lot of private e-mail. (See how companies mine your data.) http://www.time.com/time/business/article/0,8599,2058114,00.html  

The e-mail privacy problem starts with the Fourth Amendment, which prevents unreasonable searches — or more precisely, with how the Fourth Amendment has been interpreted. The Fourth Amendment requires law enforcement in most cases to get a search warrant before they enter a home. To obtain a warrant, the government must have "probable cause" to believe a crime is being committed.

The Fourth Amendment gives similar protection to first-class mail sent through the postal service. Generally, the government needs a warrant to open it. The rules for listening in on phone calls are even tougher. To comply with the Fourth Amendment, the government generally needs a "super-warrant," with its own set of procedural safeguards.

These strong constitutional protections for private communications fall apart, however, for e-mail. The courts have not definitively decided whether the Fourth Amendment requires the government to get a warrant before obtaining an individual's e-mails from their email provider and then reading them. Government lawyers like to emphasize the ways in which e-mail could be seen as deserving of less privacy; some of the most popular e-mail programs, for example, such as Gmail or Hotmail, are held by a third party, and the law often gives less protection to information that we let third parties keep for us. Last December, the Cincinnati-based United States Court of Appeals for the 6th Circuit ruled that a warrant is required to search stored e-mail — but that decision only applies in four Midwestern states. (Watch "10 Simple Gmail Tricks You Might Not Know.") http://www.time.com/time/video/player/0,32068,541322291001_2010156,00.html  

There is a second source of legal protection for e-mail privacy: the Electronic Communications Privacy Act. But its protections are limited. ECPA requires government to get a warrant when it intercepts e-mail in transit, but once an e-mail lands in your inbox, the protections are weaker.

The government does not have to get a warrant, for instance, to read e-mail you have stored for over 180 days. That is a huge loophole, since many people use their e-mail accounts as electronic filing cabinets. The federal government has also taken the position that once you open an e-mail it loses its protection, and it does not need a warrant to read it.

The Electronic Communications Privacy Act was enacted in 1986 — ancient history for the Internet. Senator Leahy has rightly been pushing to update it, and in particular to add new privacy protections.

Leahy's bill would eliminate the 180-day rule and impose a single standard: the government must get a search warrant from a court any time it wants to read your e-mail, old or new. (See "The End of Privacy? Not Yet.") http://www.time.com/time/magazine/article/0,9171,2058192,00.html  

In addition to the e-mail protections, Leahy's proposal takes on another cutting-edge issue: locational privacy. It would require the government to get a warrant in most cases when it wants to use the signals sent out by your smart phone or tablet computer to find out where you are.

The Leahy bill could go further. The Electronic Frontier Foundation, a leading privacy-rights group, objects that it would give the government greater ability to use National Security Letters to get data about whom people communicate with online, without a subpoena. But on the whole, it would make important improvements in the state of the law.

E-mail is today's equivalent of what postal letters and telephone calls once were. But the law has failed to give people the same protections in their e-mail that they have in those earlier methods of communication. If the Leahy bill becomes law it would help the law keep up with the march of technology — and it would start to put privacy protections where they need to be in the Internet Age.

Cohen, a former TIME writer and a former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School.