A few weeks ago we celebrated House passage of the Email Privacy Act by a stunning 419-0 vote. This legislation is a long overdue corrective to existing law that fixes enormous gaps in the Fourth Amendment protections Americans expect regarding their email and other electronic data. In a Congress as partisan and gridlocked as this one, a unanimous vote suggests something approaching a historic level of consensus. You might think the Senate would welcome such a consensus and the opportunity to counter the narrative that it has become dysfunctional and proceed expeditiously.
But you would be wrong. In fact, this week several senators filed amendments more or less designed to kill the legislation. And here they are, along with their amendment numbers:
- Sen. Jeff Sessions (Sessions 1 - HEN16527 & Sessions 2 - HEN16529)
- Sen. John Cornyn (Cornyn 1 - OLL16601 & Cornyn 2 - HEN16528)
- Sen. Jeff Flake (HEN16524)
- Sen. Lindsey Graham (OLL16603)
- Sen. Orin Hatch (Hatch 1 - ALB16558 & S.356 Hatch 2 - ALB16560)
Either these senators, all Republicans, don’t get it, or they are listening to the wrong people—the wrong people being federal law enforcement agencies that resent being forced to operate within the Fourth Amendment.
Today, your email and other data stored locally, on servers or in the cloud, are available to government agencies without a warrant and without probable cause simply because they are older than 180 days. This 30-year-old law was always in violation of the Fourth Amendment, but is glaringly so today, in a world where average Americans routinely store sensitive data much older than 180 days.
The purpose of the Fourth Amendment is to limit the ability of government to intrude without cause into the private lives of American citizens. Requiring government agencies to obtain a warrant to access your data is not an unreasonable burden on law enforcement—it’s simply the most basic application of the Fourth Amendment to our digital lives. It’s disappointing that these Republican senators, who no doubts claim to support the Constitution and oppose big government, apparently don’t understand that.