The Fourth Amendment to the U.S. Constitution guarantees that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
When the Bill of Rights was written, the implications of that language were fairly straightforward. The country was largely an agrarian society where communication generally required face-to-face interaction.
Technological progress has complicated what it means to be secure in our “persons, houses, papers, and effects.” The Supreme Court had to determine whether the warrantless opening of a letter being handled by a federal agency, specifically the U.S. Postal Service, constituted an unreasonable search or seizure. With the invention of the telephone, government wiretapping of phone conversations also became an issue. In the case of both technologies, the high court ultimately determined that citizens reasonably do expect these communications to remain private, and not to be subject to government surveillance.
Unfortunately, the Supreme Court created a hole in electronic privacy when it allowed government access to records that the consumer had turned over to a third party. The issue arises, for example, when a customer shares financial information with a bank to pay a check. Congress attempted to close this hole through passage of the Electronic Communications Privacy Act in 1986. The law is now badly outdated.
It dealt with early forms of email communication. But that was well before smartphones, text messages, social media and cloud computing. This last technology allows a user to save electronic documents on distant computer servers — and to retrieve those documents through broadband Internet technology. Google Docs, backup and recovery services, and electronic health records are all examples of cloud-based services loaded with sensitive information. All these documents are administered by a third party.
While some appellate courts have recognized the right to be secure in cloud-based “papers and effects,” the federal government has been ambivalent in its treatment of Fourth Amendment rights in electronic records. The U.S. Justice Department says that it requires a warrant to view content, but the Securities and Exchange Commission is seeking an exception to the warrant requirement.
The country needs greater clarity on this important constitutional matter. Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, has teamed up with Sen. Mike Lee, R-Utah, to introduce a necessary update to the Electronic Communications Privacy Act. The bill passed the committee last April, and a companion measure in the House has more than 180 co-sponsors.
We support these efforts. Groups from across the ideological spectrum, from Heritage Action for America to the American Civil Liberties Union, have created a coalition to push for the ECPA revisions. Their goal is to ensure against unreasonable searches and seizure of this kind of cloud-based content.
“Cloud computing enables consumers and businesses to access their data anywhere and with many computing devices, facilitating collaboration and flexibility and providing cost-effective solutions,” wrote more than 100 technology companies and nonprofit organizations supporting these “digital Fourth Amendment” efforts. “Removing uncertainty about the level of legal protection afforded such information will encourage consumers and companies, including those outside the U.S., to utilize these services.”
The measure wouldn’t solve all the nation’s electronic surveillance issues. The Obama administration has made some progress in addressing concerns about inappropriate spying by the National Security Agency. But the issues surrounding our digital Fourth Amendment are easier to understand and to update. We urge Senate Majority Leader Harry Reid, D-Nevada, to call this important ECPA bill (S.607) up for a vote by the full U.S. Senate.
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