Barack Obama is supposed to make a big speech on Friday, outlining his plans to reign in the National Security Administration and preserve Americans security, years and years after the NSA expanded data collection and privacy intrusion beyond even Bush Administration levels, even as Barack Obama himself publicly decried the surveillance state that had developed in the wake of 9/11.
Anyway, even though most people are highly suspicious of the administration’s commitment to pulling back on their spying habits (after all, they didn’t even abandon a massive cell phone metadata mining program when it was found to be completely useless in detecting and preventing acts of terrorism), there is at least one thing the Obama Administration could do right away to help protect Americans’ privacy. And it’s bipartisan. And common sense. And the panel that reviewed the NSA’s systems recommended it. Which means it probably won’t make it into the final strategy. But it’s worth a shot, right?…
Basically, the Federal laws regarding when an agency needs a warrant to get hold of a person’s electronic communications, like their email, the Electronic Communications Privacy Act, hasn’t been updated since 1986 (twenty seven years ago), before any of us started using email, which is probably par for the course for the government, but is a real problem when you consider that Americans spend far more time communicating via the Internet than anywhere else (we send almost 145 billion emails every day). But your emails don’t (currently) even have the same protections as your snail mail.
In 1986, email was rare. Now, 145 billion emails are sent every day for business and personal purposes. There is no way that the 99th Congress could have envisioned the exponential growth of this relatively new technology. At a time when the government shows a preference for electronic records — for example, in health care — the idea that these are less protected by existing law should do something rare: unite liberals, conservatives, and independents for legislative reform….
Over the past few weeks, liberal, conservative and non-partisan groups have combined forces to raise awareness and spur change to ECPA. The ACLU has joined with Heritage Action for America, the Center for Democracy and Technology, and Americans for Tax Reform to form Digital 4th, a coalition dedicated to reforming ECPA and bringing Fourth Amendment protections into the 21st century.
At present, ECPA allows government officials to invade our private lives based on hunches and suspicions. Extending the standard that exists for paper records to those stored electronically is a common-sense solution that strengthens individual liberties, while giving government a single standard across all platforms of communication.
Mike Lee spoke about reforming the Electronic Communications Privacy Act last May on Coffee & Markets and a bipartisan coalition, led by Lee and Sen. Pat Leahy, has been building ever since, uniting the strongest defenders of liberty on the right with the most vocal opponents of control on the left (as well as 100 individual tech companies). In fact, if Barack Obama were to suggest reforming the ECPA in his speech on Friday, he’d have a bipartisan coalition almost completely ready to go – and for Barack Obama, that’s a tough thing to put together (even though he needs it desperately for any of his reforms to even make it to the floor of Congress).
Of course, conservatives should ask why they should join with liberals when it comes to, well, anything. After all, it’s not like we have many of the same priorities. While they’re spending like drunken sailors (with the caveat that drunken sailors only spend their own money), we’re trying desperately to encourage our errant legislators to at least consider the idea that a larger government isn’t the answer to all of our problems. But think for a second about the recent IRS targeting of conservative organizations, holding up 501(c)(4) applications for any organization that deigned to put “supporting limited government” in it’s job description – just before Tax Day last year, a FOIA request filed by the ACLU revealed that they were using their authority under the ECPA to take a gander at all sorts of communications, no doubt including those of the potential 501(c)(4)s.
Despite the IRS’s claims that this targeting was not politically motivated, Tea Party and other conservative groups are rightly upset. In fact, every American, regardless of political ideology, should be troubled.
This revelation is all the more worrisome in light of IRS documents that were recently released in response to FOIA requests submitted by the ACLU; these documents suggest the agency doesn’t believe it’s required to get a warrant before reading Americans’ emails.
This stance by the IRS is based on its interpretation of the Electronic Communications Privacy Act (ECPA), an outdated federal law that sets the standards for when the government can access our digital communications. This interpretation flies in the face of Americans’ basic Constitutional right “to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures.”
President Obama is expected to address the nation this week and lay out reforms to the National Security Agency (NSA) in an effort to reassure Americans that their privacy is protected. The President must include an update to ECPA as part of his proposal. It’s bipartisan, it’s common sense and it’s a major step to demonstrating the government is serious about respecting Americans’ online privacy communications. The world has changed a lot since 1986. The law must change with it in 2014. Congress has been slow to reform ECPA, but with the support of the President and the grassroots, they could probably be pushed. There’s no telling what a few key voices could accomplish when they set out to make DC listen.