When you hear the word “mail,” do you think of what you read online or of what the U.S. Postal Service delivers? If you’re like most Americans, you’re more likely to communicate via email than to sit down and write snail mail.
But hackers can break into personal email accounts – and so can law enforcement. Investigators who want to read traditional correspondence must get a search warrant; for email at least 180 days old, police need only subpoena Internet service providers.
Subpoenas are easy to come by. Getting one requires only that law enforcement officials believe the information would be relevant to an investigation. There’s no court in the loop. Search warrants, in contrast, require that police convince a judge that there is probable cause that the material would be evidence of a crime. And except in emergency situations, they must notify the person being searched.
Given the prevalence of email, it no longer makes sense for law enforcement to have such easy access to a person’s electronic correspondence. The law governing such messages – the 1986 Electronic Privacy Communications Act – should be updated to cover Internet providers which often maintain immense quantities of personal correspondence. Email and other electronic content deserve the same level of protection as correspondence written on paper and delivered by the Postal Service. Same principle, different century.
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Efforts are under way to do just that. Legislation sponsored by Sen. Patrick Leahy, D-Vt., recently passed the Senate Judiciary Committee and likely will be taken up in 2013. Leahy authored the 1986 legislation and recognizes the need for it to better reflect 21st century realities.
The strongest opponents are, predictably, law enforcement officials. They argue that a search warrant requirement would slow down their investigations. It will no doubt do that in some cases, but efficient police work must be balanced against civil liberties. It’s become too easy for law enforcement to get the kind of personal information that once required a judge’s oversight.
Personal communication has changed over the last quarter century. Privacy protection should change with it.