If you’ve ever emailed sensitive financial material or personal health information, or sent a racy picture to brighten someone’s day, chances are Big Brother took a peek.
Under an antiquated law concocted years before email became commonplace and decades before the invention of smartphones, law enforcement can snoop on any emails, texts, or instant messages that are more than 180 days old.
This revolting violation of privacy tramples Americans’ Fourth Amendment rights and harms U.S. businesses. And even though all this spying is done under the guise of public safety and preventing terrorist attacks, the practice actually puts Americans in greater danger.
Congress passed the Electronic Communications Privacy Act, better known as the Wiretap Act, in 1986. In recent years, Congress twisted the law so electronic messages over 180 days old are considered abandoned. This allows law enforcement to access emails and messages with a simple subpoena instead of a judge-issued warrant, a troubling violation of Fourth Amendment protections against warrantless search and seizure.
As a result, federal agents browse millions of emails and messages using random searches for word combinations that prompt further investigation. One PhD data scientist at the University of Pennsylvania estimates this unfocused, scattershot approach leads to more than 10,000 false positives for every one real lead.
While the FBI, CIA, National Counterterrorism Center, and other anti-terrorism bureaucracies are busy sifting through your aunt’s emails and your kid’s Facebook messenger conversations, they miss, ignore and fail to follow up on real threats.
Sadly, scores of innocent Americans have died as a result of this ham-fisted approach to data collection.
Boston Marathon bomber Tamerlan Tsarnev, the two ISIS-inspired terrorist who attacked police officers in Garland, Texas, and Omar Mateen, the jihadist who killed 53 people at Pulse nightclub in Orlando last year, were all identified as potential terrorists by the U.S. intelligence community. Unfortunately, federal agents failed to closely monitor these extremists because they were too busy reading innocent Americans’ emails.
Besides putting American lives in danger, the Wiretap Act is also a threat to U.S. companies.
Using the Wiretap Act, the Justice Department demanded Microsoft hand over data stored on one of its servers. But the data belonged to an Irish citizen and the server was located in Ireland. The federal government was forcing Microsoft to commit a crime by violating Ireland’s privacy laws.
While a federal appeals court shot down this troubling overreach of power by the United States, Justice Department officials plan to take the issue to the Supreme Court.
This outrageous behavior by the Justice Department may cause Microsoft and other American firms to abandon doing businesses in countries that don’t take kindly to America prying into their citizens data. Ultimately, some companies may be forced to relocate their headquarters overseas to avoid the harm to their bottom line caused by the Wiretap Act.
Fortunately, President Trump, Congress and Attorney General Jeff Sessions all have an opportunity to restore privacy, support U.S. businesses, defend the Fourth Amendment, and protect American citizens.
First, Attorney General Sessions should immediately end the planned appeal of the Microsoft case. Losing the appeal would prove a useless waste of time and tax dollars, and winning in the Supreme Court would be disastrous blow to American businesses and, eventually, the privacy of every person on Earth.
Next, Congress should pass the Email Privacy Act and the International Communications Privacy Act, two popular bipartisan bills that restore privacy and protect American companies.
The Email Privacy Act, which is currently winding its way through the House, updates the Wiretap Act by getting rid of the outmoded 180-day rule and requiring the government to obtain an individualized search warrant before rifling through anyone’s email.
A related Senate bill, the International Communications Privacy Act, would “clarify U.S. law enforcement's ability to obtain electronic communications around the world,” according to a release from its sponsors, Senators Orrin Hatch, R-Utah, Chris Coons, D-Del., and Dean Heller, R-Nev. If adopted, the Act would create a formal process for obtaining Americans’ electronic communications housed outside of the U.S. and prevent instances of international overreach such as the Microsoft case.
Finally, President Trump should follow through on his campaign pledge to put America first by demanding U.S. intelligence personnel engage in more targeted and effective surveillance that respects the Fourth Amendment and the privacy of American citizens.
Congress and the Trump Administration must work together to restore privacy, while improving intelligence gathering on those who wish to harm us. The Constitution, the U.S. economy, and the lives of innocent Americans are relying on it.
Drew Johnson is a Senior Scholar at the Taxpayers Protection Alliance and National Director of Protect Internet Freedom. To read more of his reports — Click Here Now.
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