The Journal - The Government Can Raid Your Emails Without Due Process. We're Trying to Change That.

Op-Ed

by Congressman Jared Polis and Congressman Kevin Yoder

What if we told you any government agency was able to kick down your front door and rifle through your mail or hand-written letters in your home without probable cause?

If you've watched enough Law and Order, you'd say that's surely illegal. And you'd be right. Your paper documents are protected under the Fourth Amendment to the United States Constitution from unreasonable search and seizure by agencies like the Justice Department or the Internal Revenue Service. IRS agents would first have to go to a judge and obtain a warrant by showing probable cause before entering your home without your consent.

Now what if we told you those same agents were able to march over to Google and obtain any of the correspondence in your Gmail account, as long as they're older than six months, without that same probable cause? Also illegal, right?

Wrong.

Under the Electronic Communications Privacy Act of 1986, government agencies are free to obtain any digital communication sitting on a third-party server for more than 180 days--or six months--without first showing probable cause. Yes, you read that correctly. The law governing our digital privacy protections from government intrusion was written two years after Apple released the first Macintosh computer.

Why? Lawmakers didn't foresee the evolution of email. They reasoned that if an individual was leaving an email on a server for more than six months, it was akin to that person leaving their paper mail in a garbage can at the end of their driveway. Thus, that individual had no reasonable expectation of privacy for that email under the Fourth Amendment.

As we know all too well in 2015, that theory is entirely wrong. Consumers routinely store emails on third-party servers for months and even years. To argue that these emails, which may include sensitive or confidential personal information, should somehow be exempt from basic privacy protections is preposterous. Yet, the IRS and other government agencies maintain Americans have no expectation of privacy with respect to their old emails and continue to rely on an arcane 1986 law to govern digital privacy protections.

This can't be allowed to continue.

To fix it, we've introduced the Email Privacy Act with over 260 additional House cosponsors. Our bill would extend the same Fourth Amendment probable-cause protections afforded to our physical mail to our digital communications and storage. It would require government agencies to obtain a warrant to search your Gmail account, just as it would your home.

The two of us don't always agree on every issue, but then again neither do the Heritage Foundation or the American Civil Liberties Union, both of which support our bill. Neither do Senator Patrick Leahy (D-VT) or Senator Mike Lee (R-UT). They have introduced the Senate companion version of our bill. Rarely do you see a majority of the House of Representatives cosponsor a bill upon its introduction. Here, you do. In fact, our bill has the third-most cosponsors of any piece of legislation currently introduced in the 114th Congress.

Lawmakers in 1986 should be commended for attempting to codify privacy protections for a ground-breaking, new technology. Unfortunately, they got it wrong. Not through their own fault, but through an unforeseen evolution of the technology and how it is utilized by our society.

There is no reason why this law shouldn't be updated. That's why we tried to include the Email Privacy Act within a larger cybersecurity bill moving through Congress this week. We will continue to fight for Americans' digital privacy rights, and we urge any members who have not already joined our cause to do so.

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