On Wednesday, I appeared on the Laura Ingraham Show to discuss the Obama administration's stance on reforming the 1986 law that governs law enforcement access to private electronic communications. CEI has joined a number of policy groups, corporations, and academics in urging Congress to amend outdated U.S. laws originally intended to protect citizens against unwarranted law enforcement access to their private information held electronically by third parties. However, as CNET's Declan McCullagh has chronicled, the Justice Department recently expressed to Congress its opposition to strengthening privacy laws. You can listen to the whole interview here (subscription required). Here's an excerpt:
MS. INGRAHAM: The Electronic Communications Privacy Act . . . was passed back in 1986, and now it’s being interpreted . . . to allow e-mails stored with an Internet provider for more than 180 days as if they were abandoned. And it makes them available to the government to access with only a subpoena. No search warrant. . . . How does a 1986 law . . . apply to e-mails when e-mails weren’t around in 1986? MR. RADIA: In 1986, e-mail was actually brand new, and the notion that somebody would be storing their e-mails for 180 days was just unheard of. Today, of course, companies like Google encourage you to store all of your e-mails on the cloud forever. It’s really convenient, but it creates this real risk that government, law enforcement will get your e-mails with a mere subpoena, which is pretty much rubberstamped by a court. MS. INGRAHAM: Well, here’s what we know: both Republicans and Democrats have asked for this thing to be updated, and yet we’re seeing opposition to this. Why? MR. RADIA: It’s the law enforcement community. . . . They told Congress in a hearing earlier this month . . . that they don’t think reforming this law to establish real privacy protections is a good idea. It’s really worrisome because the Fourth Amendment that protects our right to be free from unreasonable search and seizure has been eroded by technology and by this statute -- this 1986 law that’s out of date. MS. INGRAHAM: Well, right now I think people hope that they can hold on to their e-mails, right? . . . I guess once they send the e-mail, even if they’ve deleted it on their own computer, it’s still somewhere, right? MR. RADIA: Right. When you send an e-mail, it could be not only on your computer but on that of your recipient. What you can do, however, is pull the e-mail off the cloud and store it locally on your hard drive. Due to a series of court decisions, there’s this strange reality now that if you store something in your home, the government almost always has to get a warrant to access it.