Texas First State to Require a Warrant to Read Emails… Other Laws Still Outdated

Texas is officially the first state in the United States to require a warrant to read emails.

HB2268 was signed on Friday by Gov. Rick Perry. This now safeguards Texans from email snooping by state and law enforcement without a warrant.

This is a huge step forward for online privacy, especially in the wake of the NSA/PRISM scandal that erupted earlier this month. With so much of everyones lives living online via social, email, cloud, etc, it is now time for Congress to revisit an amendment that is nearly 2 decades old, the Electronic Communications Privacy Act (ECPA).

ECPA was passed in October of 1986. It was an amendment to the Title III, also known as the Wiretap Act of 1968. Title III stated that it was illegal to intercept telephone calls (over wire, or face to face) except with a judge’s warrant. By the 1980s, technology was quickly evolving and more and more people were communicating by transferring data, not voice. The Wiretap Act did nothing to protect data transfers that were happening online.

A court ruling decided that in order to sustain growth and innovation in the technology sector, there had to be some sort of protection for online data transfers. The court ruled that if wireless or data transfers were not considered private and protected, this would ultimately stop technological innovations dead in their tracks.

The choice was simple, make an amendment to the outdated law that would protect further development. The only real problem was that in the 1980s, not many people knew what the Internet was. Although the Internet had been around for quite a long time, it wasn’t mainstream at all. Computers in the home were rare and quite expensive. In addition, email was still in its infancy and was slowly being adopted by consumers worldwide.

In the early days of email, online storage was quite expensive. Therefore, once an email was received, it was quickly read and discarded. When the amendment was being written, Congress argued that people would read an email and then delete it. If they really wanted to save the email, they would print it out. Therefore, they decided that emails that were left on servers were considered abandoned property. Because of this clause, under ECPA, any email older than 120 days is legally accessible to the government, or other law enforcement without requiring a warrant.

Fast forward to 2013 and you can see how this becomes a major issue. No one could have predicted the way that technology has exploded. We are such a connected society that it is scary.  No one picks up the phone to call anyone anymore– I often forget that my iPhone is even capable of making a phone call. I sent 10 emails this morning alone, and nearly everyone has a Gmail, Hotmail, Yahoo email account with practically limitless storage. I never, ever delete an email, what’s the point?

Personally, it is scary to think of all of the things that I have stored online; photos, blog content, private emails, it is all fair game to the government because of some outdated amendment that was passed in the infancy of the internet age.

You may argue, “But what about the Fourth Amendment? Doesn’t that shield me from unreasonable searches and seizures?” sadly the Justice Department will argue that the Fourth Amendment does not cover data stored online. WHAT?!

26 years later, here we sit with loads of awesome technology and new technologies emerging daily, it is now time to ask for reform to ECPA. Don’t we deserve the same protection online that we enjoy in our homes?

DigitalDueProcess.org is a diverse coalition of companies, think tanks, and public interest groups from across the political spectrum that have called for change.  The coalition has said that the following principles should guide ECPA reform:

  • • Information should receive the same protection regardless of technology or platform.
  • • Reform should preserve the building blocks of criminal investigations–subpoenas, court orders, etc.–as well as the sliding scale that allows law enforcement to escalate investigations.
  • • Generally, a type of information should have the same level of protection whether it is in transit or being stored.
  • • How old a communication is–or whether or not it has been opened–should be irrelevant to the privacy protections it receives.
  • • All stakeholders–service providers, users and government investigators–deserve clear and simple rules.
  • • The exceptions that have been written into ECPA over the years should be left in place.

Check out this video up top and head over to DigitalDueProcess.org to learn more about ECPA reform and what you can do to educate yourself and help.

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