Business mail in the cloud deserves Fourth Amendment protections.
Ordinarily, business cares as much for civil
liberties as my dog does for integral calculus; in most cases, personal
freedoms are as relevant to making a buck as the slope of a curve is to what
kind of pizza is coming up the steps. But there's a hole in privacy law that
affects corporate America as much as it does Joe Sixpack, and it concerns email
that's stored in the cloud.
You see, in most of the country, any email that's
left on a server for more than six months is considered to be abandoned, and is
therefore accessible by the authorities without a warrant. That's because the
relevant clauses of the ECPA (Electronic Communications Privacy Act) became law
in 1986-when disk space was dear and email was still a curiosity.
I say "most of the country" because there's an
exception to this rule in the states assigned to the Sixth Circuit of the U.S.
Court of Appeals: Kentucky, Michigan, Ohio and Tennessee. At the end of last
year, that court recognized that the way we use email has changed dramatically
in the last 25 years and that, thanks to cloud-based mail services such as
Google's Gmail and Microsoft's Hotmail, it is now common practice to leave email
on a server for years. But that ruling has no effect in the other 12 appellate
circuits; as usual, technology is way ahead of the law, and it's up to
legislators or the courts to bring the law up-to-date, by enactment on the part
of the Congress and the White House, or interpretation by judges.
The Senate Judiciary Committee held hearings in
early April on extending the protections of the Fourth Amendment to cloud-based
email, and as usual, the authoritarians in the government and law enforcement objected
to the quaint notion of requiring a search warrant before combing through emails
that are beyond the six-month threshold. The ranking member of the committee, Senator
Charles Grassley (R-Iowa), described requirements for search warrants in the
case of stored communications "burdens" on courts and law enforcement.
Senator Grassley needs a refresher on the Bill of
Rights, if he truly believes that is the case. Such "burdens" exist for a
reason; if law enforcement lacks probable cause, it has no business combing
through the email of private persons or businesses, no matter where it happens
to be stored.
I expect the Justice Department to be hostile to an
argument in favor of privacy rights; after all, one of its jobs is enforcement
of this country's laws at almost any cost. But when a senior senator who has used
liberty as a bully pulpit takes a position against "the right of the people to
be secure in their papers and effects," I wonder what exactly it was that my
ancestors fought for. It's a sad state of affairs when the Commerce Department
appears to care more about the rights of Americans than do those who present
themselves as the defenders of our freedom.
AT&T and Google, among others, have come
together to lobby the Congress for an update to ECPA that recognizes the right
to privacy in communications without regard to how long those communications
have been stored, but it's going to be an uphill battle. What's at stake here
is the right of businesses, as well as that of individuals, to be free from
unreasonable search and seizure.
Although on its face, very little of the Bill of
Rights can be said to apply to business, even the most gung-ho crime fighter
would get a warrant before invading my employer's office in search of evidence.
Why should my email be any different, just because it's stored on a computer in
Texas instead of a file cabinet in San Francisco?