A rapidly evolving technological world and slow-moving law reform make a terrible concoction for both citizens and law enforcement officials.
When Congress wrote the Electronic Communications Privacy Act (ECPA) in 1986, most people still were sending letters by snail mail. Email was so new that Congress considered it unlikely someone would keep an email for more than 180 days.
Therefore, Congress reasoned, while law enforcement must obtain a search warrant to view emails newer than 180 days, there was no reason to protect older electronic correspondence. For more than two decades, police have been accessing 180-day-plus emails without a search warrant. All they need is a subpoena granted without approval of a judge.
The U.S. Senate Judiciary Committee is considering legislation that would scrap the 180-day exemption and require law enforcement to get search warrants to obtain all personal emails. Federal lawmakers are expected to pass the measure, which they should.
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Privacy protection laws should apply equally to written and digital correspondence. Times have changed, and so must the law.
But while Congress moves at a snail’s pace, technology races ahead. Young people today are more likely to communicate via text messages than email. And forget paper correspondence as a relic.
And the texting generation will trigger a whole new debate over the balance between law enforcement scrutiny and Americans’ right to privacy.