The end of email privacy

Jim Harrington and Renato Ramirez

The U.S. Senate will soon vote on a law that would gravely undermine Americans’ privacy and give expanded, unbridled surveillance authority over people’s emails to more than 22 government agencies.

Sen. Patrick Leahy, the influential Democratic chair of the Senate Judiciary Committee, has capitulated to law enforcement agencies, including the U.S. Justice Department, and is sponsoring a bill that authorizes widespread warrantless access to Americans’ emails, as well as files on Google Docs, direct messages on Twitter and so on, without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge. 

Leahy’s bill would only require the federal agencies to issue a subpoena, not obtain a search warrant signed by a judge based on probable cause. It also would permit state and local law enforcement to access Americans’ correspondence stored on systems not offered to the public, including university networks, without warrants.

Even in situations that would still require a search warrant, the proposed law would excuse law enforcement officers from obtaining a warrant (and being challenged later in court) if they claim an “emergency” situation.

Not only that, but a provider would have to notify law enforcement in advance of any plans to tell its customers they’ve been the target of a warrant, order, or subpoena. The agency then could order the provider to delay notification of customers whose accounts have been accessed from 3-10 business days or, in some cases, up to 360 days.

Agencies that would receive civil subpoena authority for electronic communications include the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission, and the Mine Enforcement Safety and Health Review Commission. There is no good legal reason why agencies like these need blanket access to people’s personal information with a mere subpoena, rather than a warrant.

One might expect better of Leahy given his liberal credentials, but his performance has been quite disappointing.  In fact, he had a hand in making the USA PATRIOT Act bill less protective of civil liberties. Nor has the Obama administration been helpful in this regard — quite to the contrary. Expectations of  law enforcement types might not be as high in terms of protecting civil liberties, but they should not be as unsatisfactory as they are with proponents of constitutional freedoms.  

The revelations about how the FBI perused former CIA Director David Petraeus’ emails without a warrant should alarm us all as people who have less power and prestige than he did.

If the Fourth Amendment is to have any meaning, it is that police must obtain a search warrant, backed by probable cause, before reading Americans’ emails or other communications. If we are to preserve our constitutional protection from warrantless searches that are not reviewed by the courts, we need to let our U.S. senators from Texas hear from us immediately and resoundingly.

We cannot allow the government to undermine our rights bit by bit, even in the name of national security, which too often is the justification the government so casually uses.  As Ben Franklin said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Ramirez is Chairman and CEO of the International Bank of Commerce-Zapata and Harrington serves as director of the Texas Civil Rights Project and an adjunct professor at the UT School of Law.