Protect email privacy rights

Iowans learn in high school civics class that the Fourth Amendment protects the right of all U.S. citizens 'to be secure in their persons, houses, papers, and effects, against unreasonable searches.” The government cannot search our homes or offices, tap our phones or read our mail without obtaining a search warrant from a judge by showing there is 'probable cause” to suspect we are committing a crime.

It would come as quite a surprise, then, to hear that government officials claim that, thanks to the provisions of an obscure, very outdated law, they do not need a warrant to search a private citizen's emails or anything else we store digitally with an Internet service provider.

That is exactly what officials from the Securities and Exchange Commission (SEC) and Federal Trade Commission (FTC) maintained in testimony before the Senate Judiciary Committee in a hearing called by the Committee Chairman, Senator Chuck Grassley.

The law the witnesses claim grants them this Fourth Amendment circumventing authority is the Electronic Communications Privacy Act (ECPA). And before I discuss their testimony some more, as well as efforts to restore Constitutional protections to private information we store online, a little background on ECPA is in order.

ECPA was passed in 1986, which considering the extraordinary pace and scope of technological innovations in the Internet age, might as well be 1886. Few people owned their own computers in 1986. The first Mac had been sold two years before. It had a 9-inch screen and 128KB of memory and cost $2500. Even fewer people knew about, much less used, a brand-new communications technology called email. The World Wide Web didn't exist. Neither did texting. No broadband or social media or cloud computing. Internet service providers offered little storage capacity and the little they sold was very expensive. And with hard drives so small, the relatively few people using email could spare the space or the expense to keep an email after writing or reading it.

So it made perfect sense for Congress to protect the privacy of email users in 1986 by writing a law that restricted the government's access to emails that were 180 days old. Emails left with a third party provider for that long were assumed to be forgotten and abandoned.

Of course, today we store all kinds of sensitive records online indefinitely - emails, texts, financial records, proprietary work products, diaries and family photographs. All of it, every email and text and Google Doc and photograph is subject to government inspection without a warrant or probable cause. The government only needs a subpoena to access anything we keep with a third party provider for longer than six months. Most Americans would consider than an intolerable invasion of their privacy.

Fortunately, so do most members of Congress. Legislation sponsored in the House by Representatives Kevin Yoder and Jared Polis and in the Senate by Senators Mike Lee and Pat Leahy, with wide support from Republican and Democratic members, requires government agents to obtain a warrant to search any of our emails and digital records no matter how long they've been stored with a third party. The legislation is supported by one of the broadest coalitions ever assembled, liberals, conservatives, moderates businesses large and small, labor, privacy advocates and former law enforcement officials.

The SEC and FTC oppose this urgently needed reform, and credit is due Senator Grassley for bringing representatives of both agencies before the committee to explain their position. The witnesses acknowledged their agencies believed they had under ECPA the authority to order warrantless searches. And they insisted that authority was essential to their ability to investigate 'fraud and other unlawful conduct.” And yet neither witness could provide an example when their agencies had used that authority to help solve a case. Not a single one. And this in a year the SEC claims has seen a record number of successful investigations.

The truth is that no agency of the government needs to ignore Fourth Amendment protections to investigate and prosecute lawbreaking. They never have and they never will. The ECPA reforms pending in Congress ensure that government can enforce its laws and regulations without violating the privacy of law-abiding citizens.

There is as close to a political consensus in support of ECPA reform as is possible in this era of gridlock and polarization. Most Americans agree their email ought to have the same assurance of privacy as their phone conversations. So do most members of Congress. The candidates for President should make clear they do, too. Legislation is pending, hearings have been held, and the opposition exposed as unnecessary and unfair.

It's time for Congress to stop executive branch opportunists from blocking this consensus and expanding their powers at the expense of the Iowans' liberties.

' Grover Norquist is president of Americans for Tax Reform. Bruce Lehrman is the founder and CEO of Involta. Comments: brucelehrman@gmail.com