A Senate Committee spearheaded by Sen. Patrick Leahy (D-Vermont) recently supported a sweeping set of online privacy protections that compel law enforcement agencies to obtain a probable cause warrant in order to gain access to any digital content stored in the cloud. This amendment to the long in the tooth Electronic Communications Privacy Act (which was written in 1986 when even the most rudimentary web browser was in the realm of science fiction) eliminates the provision that lets the government simply waltz into your ISP and grab any or all aspects of your digital life that they feel like taking.
The World Has Become Cloud-y & So Has Erasure from Servers
Prior to this amendment, government agencies could obtain access to digital content such as emails without any form of a warrant as long as that content was present on third party servers for more than 180 days. Since pretty well anything that is sent into or out of the cloud leaves a digital imprint for the entire duration of human existence, this six month barrier only delayed law enforcement’s access to absolutely everything ever emailed, but did not limit it in any other way. The reason why the 180 day limit was originally implemented in the 26 year old draft is because at the time most users would download email onto their own (mostly floppy) drives and delete it from the servers. Now that the world has become considerably more cloud-y, so has the erasure from servers. Most email clients have the option to leave the email on the server by default, and the vast majority of email users have never given a second thought to what happens to their messages once they’ve opened them.
The FBI Can Still Get Your Digital Data if You’re a Really Bad Apple
Of course, federal counterterrorism provisions along the lines of the Patriot Act are left unhindered so that the FBI will continue to be able to use a simple self-drafted “National Security Letter” to obtain just about anything that they want, right down to your banking login info. Fortunately this level of national security justification is reserved for the really bad apples, so private individuals who aren’t members of organized crime or terrorism organizations need not fear this extent of massive privacy incursion. If you’re a General who happens to be the head of the CIA and you’re silly enough to leave incriminating adultery emails on Gmail servers then you can expect the Feds to come sneaking around. If you’re an online marketer of possum hunting supplies in the Midwest who is sneaking around the mobile home park with your secret squeeze, you’re not quite so likely to get your private “shall I meet you at your trailer tonight, honey” emails printed out in the J. Edgar Hoover Building.
Download a Lasagna Recipe but Serve Fried Chicken
Leahy’s amendment has been praised by the ACLU as “an important gain for privacy.” Unfortunately the amendment is not yet law and it still needs to pass both the full Senate and House. As anyone inside the Beltway will tell you, there is never a guarantee that anything will get past both chambers, and when it does finally pass it’s usually unrecognizable. It’s like downloading a recipe for lasagna and ending up serving fried chicken.
The best way to keep from attracting the unwanted attention of law enforcement organizations is not to break the law, and the vast majority of Americans do manage to live out their lifetimes without veering off onto the wrong side of the tracks. However, even the most law abiding citizen treasures their privacy and would be disturbed by the thought of some Federal employee somewhere reading everything that they’ve ever sent over the internet. That is the reason why so many email users can now let out a sigh of relief that the most private content they’ve shared via email will require a judge issuing a warrant before the government can access it.
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