June 18, 2014 | By Mark Jaycox

UPDATE: Where's the White House on Warrantless Email Snooping?

UPDATE: June 18, 2014

Yesterday, the Email Privacy Act, H.R. 1852, reached 218 co-sponsors in the House of Representatives. That's great news, since 218 is the crucial number representing a majority of members of the House. It also means that there's no better time to demand that the House leadership allow the bill to come to a vote.

EFF and the Digital Due Process Coalition (DDP), a coalition of companies and civil liberty organizations, have been fighting for years to update the Electronic Communications Privacy Act (ECPA). The law, which has been used by the government to seize email older than 180 days directly from service providers without a warrant, is sorely out of date. Indeed, it has even been used by law enforcement to access Americans’ mobile phone location data without a warrant from a judge. Appeals courts around the country have tried their best to ensure ECPA doesn't violate the Fourth Amendment’s warrant requirement, and Congress has proposed bills to update the law, but so far the White House has remained strangely silent on the issue.

It's time for the White House to get behind ECPA reform.  Last December, more than 100,000 Americans signed a petition demanding that the Obama Administration support legislation to end warrantless email snooping, but yet the White House has done nothing. Today, NotWithoutAWarrant.com is launching to tell you how long the White House has ignored the issue. The message is simple: The White House must support an end to warrantless snooping on Americans’ email.

Courts are already leading the charge to ensure that the government’s interpretation of ECPA does not violate the Fourth Amendment’s requirements. In a Sixth circuit opinion called US v. Warshak, that court held that emails and other private communications are protected by the Fourth Amendment. As a result, many Internet providers and other companies storing online communications require a warrant in all cases, despite any language in ECPA to the contrary. And when it comes to issuing a warrant for geolocation, the Third Circuit ruled that a warrant could be required for location information. At the state level, courts in New Jersey and Massachusetts have firmly sided on ensuring law enforcement obtains a warrant, while states like Utah, Indiana, and Montana passed laws requiring a warrant for geolocation.

Congress is also on the verge of fixing the problem. Representatives Kevin Yoder, Tom Graves, and Jared Polis have introduced The Email Privacy Act, which will provide a "clean" update to ECPA by requiring law enforcement obtain a warrant before seeking any online private messages. And Senator Ron Wyden and Representative Jason Chaffetz have introduced the GPS Act, which requires law enforcement to obtain a warrant before obtaining geolocation. The bills will ensure that the sensitive and intimate details about users' lives conveyed via online communications, as well as your location are covered by the Fourth Amendment's warrant requirement. Now is the time to tell your Congressperson to support these bills.

Now is also the time for the White House to get behind these reforms. For far too long the Executive branch has ignored the requirements of the Fourth Amendment. It was only last year that the Department of Justice (DOJ) finally admitted that a warrant is required to access a person's email; however, this year we learned that the Securities and Exchange Commission may be ignoring the DOJ's stance and obtaining emails without probable cause. Help us move the White House on this issue: Visit NotWithoutAWarrant.com to tell the White House that it must support common sense reforms to ECPA.


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