Last week the Justice Department squandered an opportunity to reassure Americans that as technology advances our civil liberties will not be left behind. The Justice Department was called before Congress to say whether it should be permitted to read people's email, text messages and other electronic communications without a probable cause warrant — that is, without a judicial determination that it has a good reason to believe a search will turn up evidence of a crime. The clear answer to this question should have been "no." After all, a warrant has been required for postal mail since at least the 1870s and for telephone conversations since the 1960s. Why shouldn't our email receive the same protection?
Unfortunately, instead of agreeing whole-heartedly with this basic concept of constitutional law, the Justice Department refused to take a position one way or another — leaving members of Congress and the public to wonder: does the Obama administration believe it should be able to read our text messages and emails without a warrant? This dismaying development proves once again that the courts and Congress have a vital role to play in keeping government surveillance in check and ensuring that Americans' privacy rights are fully protected.
The main law protecting the privacy of our communications, the Electronic Communications Privacy Act, hasn't been updated since 1986. That's before the Web was invented. It's time for Congress to update the law to forbid reading people's private electronic communications without a warrant and probable cause. And the courts should hold that a warrant is required under the Fourth Amendment, which protects Americans against unreasonable searches and seizures of our personal papers and effects.
It is difficult to overstate the importance of what is at stake. Americans use electronic forms of communication for virtually every type of private exchange, from sharing personal advice and sending love letters to discussing medical ailments and conveying confidential business information. Electronic communications are not just augmenting postal mail and the telephone, they are replacing them. Nearly all Americans on the Internet send or read email and almost half send instant messages. Moreover, nearly three-quarters of Americans with cell phones use them to send text messages. Meanwhile, postal mail volume has plummeted so dramatically over the last couple of years that the U.S. Postal Service has been lobbying hard to eliminate Saturday delivery.
As postal mail goes the way of the telegraph, what will matter is the privacy standard for email and other forms of electronic communication. If the same warrant and probable cause requirements applied to our letters aren't extended to electronic forms of communication, Americans will lose what we have enjoyed for well over a century: the security of knowing that the government won't read our correspondence without a compelling reason and judicial supervision.
All of the justifications for requiring a probable cause warrant to read postal mail and eavesdrop on telephone calls apply with even greater force to email and other forms of electronic communication. Emails and text messages are the equivalent of our private papers, conveying our most personal thoughts to one another. Emails and other electronic communications have become an indelible personal record. They record our thoughts in all of their mundane ("What's for dinner, honey?") and profound ("This relationship isn't working for me anymore") detail — most likely forever, as storage capacities expand. In 1967, the Supreme Court extended the warrant and probable cause requirement to telephone conversations, reasoning that "to read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communications." The same is true for private, personal electronic communications today.
The government argues that requiring a warrant and probable cause will make law enforcement's job more difficult. That may well be the case, but the objective has never been to make law enforcement's job as easy as possible. It would make law enforcement's job much easier if agents could enter people's houses at will, but we recognized this is an unwarranted intrusion. Yet many people would probably rather open their closets to inspection by the world than their email inboxes.
The case here is simple and compelling. Americans should have the right to know that before law enforcement agents review our private correspondence, they will have demonstrated probable cause to a judge. That is the constitutional minimum. It's disappointing that the Obama Justice Department can't back even this simple limit on its own authority. It's all the more important that courts and Congress play their role in checking this authority by recognizing - and mandating, through rulings and legislation — that a warrant and probable cause are required given the private, personal nature of the records at stake.