This week, the House Judiciary Committee held a hearing on reforming the Electronic Communications Privacy Act (ECPA). The ECPA is a federal law that controls how the government can access private communication records that are being stored by an online service provider (i.e. in the cloud). The reason for this hearing is that there is a bill currently pending that would change the ECPA to require a warrant before any government entity could gather this information. In the Senate, it’s the Electronic Communications Privacy Act Amendments Act and in the House it’s the Email Privacy Act.
Currently, there is a ruling from the Sixth Circuit that effectively does this: Warshak v. United States decided that email privacy is protected by the Fourth Amendment. This has caused most service providers to require the government to provide a warrant before they release any information. However, this ruling has not been codified into law and could be overturned by subsequent judicial proceedings.
By and large, this is seen as a way for civil agencies (primarily the Securities and Exchange Commission) to expand their power and access to information. Because they are civil agencies, they lack the power to issue warrants, and they have been looking for a new way to access this information through a new prerogative. Via the Electronic Frontier Foundation:
“The SEC testified that currently it does not use administrative subpoenas to obtain communications content from online service providers, and instead seeks emails directly from individuals. Yet the agency wants to be able to obtain not only older communications content from third parties, but also messages that are 180 days old or newer, which is authority that civil agencies currently do not have in any form—a point that Rep. Sensenbrenner (R-WI) made.”
The good news in all of this is that there are over 300 co-sponsors of this bill in the House (the most of any bill currently before Congress according to the ALA Washington Office), so it is likely to pass when and if it comes to a vote. However, as with all legislation, it isn’t over until it’s over, so interested parties are encouraged to contact their Senator and Representative. Via the District Dispatch:
Where H.R. 699 (and its Senate companion, S. 356) goes from here — and more to the point when — is unclear. Strong further advocacy by librarians, in harness with our many coalition partners, may well be what it takes to “spring” HR. 699 from the Committee in which it’s been mired for years but from which, this week, it may just have begun to emerge.
This may seem like a minor piece of technology change that has very little to do with libraries, but the right of an individual to maintain their privacy in all the environments of the modern world is a key part of intellectual freedom. Librarians need to stand for advances and laws that help codify these rights and that help protect individuals from warrantless searches. No civil government agency should have the right to trawl through any user’s online records without a warrant in the same way that they should not be allowed to search a person’s home or office without a warrant. Libraries should proactively stand for user privacy whenever they can, and the steps that Congress are making on this bill in limiting civil power to conduct warrantless searches is a step in the right direction.
Whenever any person has their privacy violated, this has a chilling effect on that person’s future expression of free speech and thought. In an increasingly technology driven world, more and more people (myself included) are keeping their personal thoughts on their digital devices under the assumption that, much like their locked desk drawers, these arenas are their own domains. The idea that a civil government agency could violate that privacy at any moment without a warrant or any probable cause is repugnant to the idea of intellectual freedom. ALA’s own Interpretation of the Library Bill of Rights as it relates to Privacy holds in high regard the right of all library users to maintain their privacy no matter what information or materials they are seeking. I believe that if we advocate for such a right inside our buildings (when users are using our networks to access their cloud-based digital files, for example), then we must advocate for that right to extend beyond the library’s doors.
Advocacy for privacy in the digital realm can not be a place-based proposition because the digital world is literally everywhere. As such, advocates of intellectual freedom must advocate for a clear right to privacy in cloud-based storage from warrantless snooping by the government. As previously stated, this would seem to be such a small change; however, as the ALA Washington Office has pointed out in their District Dispatch article linked above, moving this bill has been an incredibly slow and laborious process.
John “Mack” Freeman is the Marketing and Programming Coordinator for the West Georgia Regional Library. He is a past recipient of the Freedom to Read Foundation’s Conable Scholarship, and a 2015 ALA Emerging Leader.