Defending your right to privacy

By Willie Carty
Thursday, 28 April 2016

Yesterday, the US House of Representatives voted to pass H.R. 699, the Email Privacy Act, which represents an important step forward in ensuring that the full protection of the Fourth Amendment to the US Constitution governs requests for your private communications from US authorities. The advancement of this important bill was achieved with a bipartisan unanimous vote of 419 to 0.

The Fourth Amendment provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” That is, if US law enforcement wants access to your private communications, they must show probable cause and a judge must issue a search warrant.

However, because of a quirk in the 30-year-old Electronic Communications Privacy Act (ECPA), these protections may not always extend to your private digital communications. In 1986 when the law was passed, no one could have anticipated how essential and ingrained digital communications and digital records would become, both in our economy and personal lives. As written, ECPA treats older communications differently from new ones and opened emails differently from unopened ones.

These distinctions fly in the face of our users’ expectations. Our users expect the same security and privacy when sending a Direct Message on Twitter that they enjoy when they send a letter in the mail or store an important document in the privacy of their own home. Indeed, the US Sixth Circuit Court of Appeals has already said that the old law does not comport with the privacy protections required by the Fourth Amendment.

The Email Privacy Act, simply codifies that Court’s finding and updates the underlying law to ensure that government access to private communications is granted only when a warrant is issued by a judge.

For several years, Twitter has worked as a part of the Digital Due Process Coalition — a large group of stakeholders that spans the political and ideological spectrum — to advocate for and seek passage of the Email Privacy Act. One court has already spoken on this issue, and as of yesterday the House has acted decisively. We strongly encourage the Senate to move forward with passage of this common sense reform and the President to sign the bill into law.