One More Day to Solicit Obama’s Support for Electronic Privacy

The National Security Agency’s
collection of metadata such as telephone records and cellphone
location information has sparked considerable outrage since it was
revealed by former NSA contractor Edward Snowden last spring. But
it is aguably less troubling than the privacy threat highlighted by
a We
the People petition that has one more day to collect
the signatures it needs to trigger a White House response: the
vulnerability of communication content that has resulted from a
combination of evolving technology and the Supreme Court’s
misguided “third party doctrine.”

According to that doctrine, which the Court developed in the
1970s, information voluntarily disclosed to third parties such as
banks, accountants, and telephone companies is not protected by the
Fourth Amendment. It therefore receives only as much protection as
legislators decide to give it. Congress responded to this challenge
back in 1986 by passing the Electronic Communications Privacy Act
(ECPA), which aimed to make sure that messages delivered by
newfangled means received the same protection as messages delivered
by mail or telephone wire. But in the 27 years since then, ECPA has
become
woefully out of date, to the point that law enforcement
agencies can plausibly claim they do not need a warrant to read
your email or peruse other files held on remote servers, even
though the same information would be protected if it were stored on
your computer at home. Given the ubiquity of remote storage for all
sorts of sensitive information, that is a pretty scary loophole,
which is why legislation
aimed at fixing this problem has attracted bipartisan support in
Congress.

But although the Justice Department has
retreated from its longstanding position that the government
may read email at will as long as it has been opened or stored
longer than six months, the Obama administration so far has not
explicitly endorsed ECPA reform. That is where the We the
People petition comes in. It currently has nearly 75,000
signatures, about 25,000 shy of the threshold for a response from
the president. “We think that, if he’s forced to take a stance,
he’ll throw his weight behind reform,”
says TechFreedom President Berin Szoka. Attorney General Eric
Holder has
said a warrant requirement for email “is something that I think
the [Justice] Department will support.” Tomorrow is the
deadline for collecting 100,000 signatures.