Privacy Rights & the 2nd Amendment

Privacy Rights & the 2nd Amendment

Constitutional Canary in the Mineshaft: Privacy rights trampled in wake of scandal?


Dateline Washington: “Government Infringement of Constitutional Protections.”

Another 2nd Amendment battle? Think again. Better watch your privacy rights.

With all the well-warranted attention being given the 2nd Amendment debate and the potential passage of new legislation to provide greater security in the aftermath of the unspeakable tragedy in Connecticut, we should not lose sight of other constitutional rights being possibly abridged. There has also been activity in Washington focused on possible impacts on Constitutional privacy protections, specifically revisions to the Electronic Communication Privacy Act (ECPA) which would expand the scope of law enforcement to collect, store and survey private citizen e-mails, web postings and text messages even further.

Currently, under the ECPA, law enforcement is allowed to collect and store electronic communications in the possession of a “provider of electronic communication service or remote computing service” for a period longer than 180 days. The government can do so without a warrant when investigating a matter and having probable cause under such a matter. Thus, anyone who uses commercial e-mail applications or social media, could every well have their messages accessed and view by government agencies without their notice or direct consent.

Yes, this is current law. This has been law for a while, but many Americans first became aware of it only recently in light of the well-publicized story involving General Petraeus. In that story, the FBI had access to the personal e-mails of the General and others involved in the matter under investigation. The unfortunate truth of this matter is that the original alleged criminal activity that prompted the surveillance was cyber stalking of one woman by another. Neither General Allen nor General Petraeus were originally named in the original complaint to the FBI filed by Jill Kelley. In the end, as it is now well known, the lives of two generals, two private citizens and uncounted people tied to each of them were forever impacted by the Government’s ability to search e-mails, related or not to the alleged crime, as allowed under the ECPA.

As if that were not enough reach for the authorities, House Resolution 2471 (H.R. 2471), as originally proposed and under consideration, would amend the ECPA to give law enforcement broader powers with respect to electronic communications surveillance and processing to include eliminating the 180-day waiting requirement while maintaining no requirement for warrant nor notice to the individuals under surveillance.

After a backlash from privacy advocates, another revision was proposed to H.R. 2471 adding back the warrant requirement and requiring, amongst other things, notice to any individuals whose electronic communications have been viewed by the government. The 180-day waiting period would still be eliminated. This proposed amendment poses concerns for law enforcement, which contend they need the access and to be free of the warrant requirement to timely respond to criminal or “emergency” threats.

As it stands today, the ECPA stands as unchanged. It still allows the government to collect, store and process e-mail messages from service providers if those messages have been in their possession for a period of 180 days or longer. But, we expect increased discussion and a possible vote on the amendment in 2013 sometime.

As with all constitutional rights, there is always the need to balance the rights of the individual and rights (i.e. security) of the governed, as whole. The ECPA and the battle over it present yet another example of our democracy in action. It also shines a light on the responsibility of the governed to speak up when their individual rights are at risk.