The law that governs our digital data is 30 years old, and experts say that’s led to a major loophole that puts privacy at risk.
The Electronic Communications Privacy Act went into effect in 1986, long before social media, smart phones and “cloud” storage. The law says if law enforcement, attorneys or others want to obtain someone’s digital information, a subpoena will often suffice.
For instance, any email or private message that is at least 180 days old or that has been opened can be obtained without a search warrant.
“There’s this huge hole out there that people aren’t aware of,” said Barry Covert, a Buffalo attorney and expert in Constitutional law.
On the flip side, if those messages were on a piece of paper inside your house, a search warrant would clearly be required.
Digital data is treated differently when it’s kept on a third-party server, which is what happens with emails and documents uploaded to “the cloud.”
“Congress needs to catch up to the reality of how users are relying on these services to store their most sensitive files,” said Alan Butler with the Electronic Privacy Information Center.
A bill that would require a search warrant for law enforcement to obtain digital data passed unanimously in the U.S. House in April. Congressman Kevin Yoder of Kansas sponsored the bill.
“Because it’s digital information, and it’s on a server, the government treats it with less protection,” Congressman Yoger, a Republican, said. His bi-partisan bill is now in the U.S. Senate, where its future is in limbo.
Some in law enforcement worry new regulations could make it more difficult to conduct investigations, especially surrounding terrorism.
“Domestic terrorism has a very significant impact upon how we in law enforcement participate in not just the investigation, but most importantly the response,” said Jonathan Thompson with the National Sheriff’s Association.
Law enforcement groups are especially opposed to each state having a different standard.
Right now, about a half dozen states have passed laws requiring a search warrant to obtain digital information from third-party servers. New York is among the states considering such a bill.
Leaders in the Senate say they’re working through the details to satisfy the worries of law enforcement and privacy groups through one national standard.
Covert said lawmakers need to act quickly.
“We need our politicians to constantly and vigilantly revisit laws to make sure they’re encompassing all sensitive and private information that we have,” Covert said.
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