A lot has changed in 26 years. The rapid expansion of e-mail as a primary form of communication is one of the biggest developments since Congress enacted the Electronic Communications Privacy Act in 1986. When Congress drafted that bill, it could not have envisioned that people would store private messages on the Internet – as a result, the law is now problematic in the real world.
One of the most notable problems involves how the government can use emails when investigating and preparing criminal cases. While the law requires investigators to get a warrant before searching and reading e-mails created within the last six months (180 days), it does not protect older documents at all.
This means that under current law, the government can simply require an Internet service provider to hand over any electronic documents on its servers that are more than six months old. Investigators do not need to get a warrant from a court first.
Congress is now responding to long-standing concerns about constitutional protections and the law’s shortcomings. One important appellate court has already ruled that prosecutors could not constitutionally read e-mails without a warrant under the law – but most states are not bound by this decision.
Legislators will likely pass a new law to replace the ECPA. That law will offer more protection for criminal suspects, probably by requiring warrants for all electronic documents.
Although the Department of Justice and many other prosecutors around the nation oppose any updates to online privacy rights, the changes will probably not function as much of an obstacle to investigations in the real world. Check back later for more analysis of the future of e-mail in federal criminal cases.
Source: Associated Press, “Greater email privacy won’t hinder law enforcement,” Nov. 29, 2012; Washington Post Opinions, “Keeping e-mail private,” Editorial Board, Nov. 28, 2012