Senator Mike Lee, R-Utah, is leading the charge to pass legislation to make it harder for the government to see your emails.
Lee is championing S. 356, also known as the Electronic Communications Privacy Amendments Act, which would require officials to get a warrant or court order to gain access to emails just as they currently do to search our mail or enter our homes. He says there are no restrictions on the government searching our emails.
“Nothing. All the government has to do is have is the thought, ‘I want to go after so-and-so’s email. They don’t have to go get a court order. They don’t have to get a warrant. They just have to decide they want it. As long as the email is at least 180 days old they can get it,” said Lee.
“That’s wrong. That violates the spirit, certainly, and also probably the letter of the fourth amendment. Yet this has been in law, in statute, since 1986,” said Lee.
Therein lies the problem. The law has not been updated in 30 years. Lee says lawmakers had no way of knowing how pervasive email would become or even conceiving of cloud-based technology. But he says that’s no excuse for not updating the law.
He says what the House and Senate legislation calls for is very simple.
“You would have to get a court order. You would have to have access to some type of official process in order to gain access to somebody’s emails. It’s not enough that it would simply need to be 180 days old,” said Lee.
The legislation is getting blowback from some government agencies, mainly the Securities and Exchange Commission, or SEC. Lee says their argument is pretty straightforward and so is his response.
“The objection is this could make it more difficult for government to gain access to documents that it wants. And my response to that is yeah, that’s the whole point,” said Lee.
“That’s also the whole point of the fourth amendment. For that matter, that’s the whole point of having a constitution at all. You want to make things more difficult for the government to do. That’s what we call rights. That’s the whole reason why we have a constitution in the first place,” said Lee.
Lee says it’s time for the government to honor all aspects of the Constitution, in this case protections against unreasonable search and seizure.
“The fourth amendment’s not just a good idea. It’s also the law. It’s there for a reason and it’s there because governments tend to abuse too much power when they have access to it,” said Lee.
Lee says the SEC has been leading the opposition to the bill while intelligence agencies have not been as active as they have in other privacy debates.
“They’ve been less vocal on this issue, in part because they’ve got other tools that they can use to gain access to what they need. The Securities and Exchange Commission has been the most vocal of the agencies on this one. But again, I just don’t think that their argument carries the day,” said Lee.
The House version of the bill, HR 699, has more co-sponsors than any other piece of legislation. The Senate bill is also popular and petitions from the public have more than 110,000 people demanding passage. However, the two lawmakers that matter most have no inclination to take action.
Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and House Judiciary Committee Chairman Bob Goodlatte, R-Virginia, have not even marked up the bills much less tried to move them out of committee.
“This does not appear to have been a priority for them so far. I’m trying to change that,” said Lee, who says Grassley and Goodlatte harbor the same reservations as officials at the SEC.
“They have some concerns because some of the things that some government agencies, especially and including the SEC have expressed. I understand that concern. I get it, but in my mind that doesn’t obviate the need for the legislation, far from it.. It actually highlights the need from it,” said Lee.
Lee says it is vital for Congress to act rapidly on the legislation for multiple reasons. First, he says Americans deserve these fourth amendment protections as soon as possible. Second, he insists there is enthusiasm in both parties in both chambers to get this done and President Obama is likely to sign it. Finally, he does not want to have to start over on this in the next Congress when there is no guarantee on what the balance of power will be.
He encourages concerned Americans to demand action from their senators and members of Congress.