According to current law, police can access email through a provider, like Yahoo or Gmail, without a warrant if the message is more than 180 days old.
The rule is a relic of the Electronic Communications Privacy Act of 1986, written before legislators could dream of the explosion of technology and ubiquity of email, text messaging, online chatting and other communications that leave behind an electronic trail.
The Senate Judiciary Committee met on Nov. 29 to consider an update to the Act which would require police to get a warrant to read email or other electronic communiques.
The proposed change comes as technological advances continue to give law enforcement more efficient and invasive ways to track people, while privacy laws struggle to keep up. Citizens might be surprised to learn that their email accounts, their phones and even their houses are subject to warrant-free electronic surveillance.
Leap Frog Technology
While the Electronic Communications Privacy Act may be outdated by about 25 years, that doesn’t mean that people need give up their reasonable expectation of privacy within new technologies, arguesBruce A. Barket, a criminal law attorney with New York firm Barket Marion.
Bruce A. Barket
“The Fourth Amendment of the United States Constitution was enacted in 1791,” Barket says. “It was enacted at a point of time to deal with government intrusion and searches that they could possibly comprehend. Now we have government searches that nobody up until the last 10 years could even envision. Could you ever envision that the government could track every movement by simply calling up a cell provider?”
At times, when lawmakers have been slow to act, courts have stepped in to curb investigative excess, such as in this spring’s Supreme Court ruling that police need a warrant to place a GPS tracker on someone’s car. The court did not deign to make a decision about tracking cell phones through GPS or other technology, however, an option that law enforcement is still free to take advantage of, sans probable cause.
Barket, who was one of the attorneys to originally challenge police use of GPS devices nearly a decade ago, points out that as even newer technologies emerge, we will be caught in a never-ending loop of efforts to protect privacy from intrusions that aren’t yet governed by law.
“It’s kind of like a leap frog. Technology will not stop happening,” the attorney says. “Courts are going to have to interpret old laws and new technologies to make reasonable decisions as to what law enforcement should be allowed to do and not allowed to do. Ultimately legislators will have to catch up.”
While the technologies are new, the debate is old, dating at least as far back as 1928, when the Supreme Court ruled in Olmstead v. United States that eavesdropping on private telephone conversations without a warrant did not constitute a Fourth Amendment violation. The ruling stood until 1967, when in Katz v. United States a different set of justices overturned the previous decision and ruled that callers do have a reasonable expectation of privacy over the telephone.
Cell phones could be the next benchmark, not only because police can see everywhere a person has been using the phone’s GPS or cell tower location information, but because if a person is arrested a vast amount of personal information stored on a smartphone could be at an officer’s fingertips.
“Someone puts data into their phone, birthdays, anniversaries, contact info, text messages, boyfriends, girlfriends, emails with all these people– you have the expectation that that information is not going to be shared with the government simply on the whim of their asking,” says Barket. “Ultimately, courts, I hope, are not going to let that happen.”
PD note: It is very dicey to put ALL info into a cellphone or any other storage device, period. When SEIZURES occur, whether you are driving, and are pulled over, on via an illegal seizure, or some trumped up baloney where a warrant is granted improperly, or where you don’t know better than to be all over FACEBOOK telling everyone everything, or you tell too many people your business online, or you innocently advertise your home phone which the police can then get your home address by reverse directory, or just by going online, or you advertise your email AND your number online at same time?
We personally recommend that you never use your home address for anything unless required by law. A private mail box requires a court order for anyone to obtain your name, much less anything else. There are encrypted email services that you can pay for which would require a court order to get the emails. When privacy is thrown to the wind, then what we end up with is very little. Cameras and camera phones are just everywhere. While they serve useful purposes, they can also be used as surveillance devices which people normally do not think of, out in public.
Some people like to say they have nothing to hide, but essentially privacy is a very important right that some do not fully understand. Identity theft is rampant, and being careless opens you up to that, even if you ARE careful. Your credit history can take 5 years to recover. Online defamation is rampant. People think nothing of shooting off their mouth online on Facebook, and as an example, we look at the Wells Fargo Bank attorney, Timothy M. Ryan of Anaheim, who did exactly that in the case involving The Grace Foundation of Northern California. Further, Ryan was on NUMEROUS online sites, bragging and denigrating the accused. This is completely improper behavior for ANY attorney, especially where that attorney himself has engaged in improper legal actions. This is not defamatory for us to say this, since it is the truth (and we have seen the evidence or we would not be saying it.)
So beware about your personal information on cell phones and computers. You wouldn’t want it to be coming back to haunt you. Think about it.