As technology advances with computers and cell phones and newer forms of communication, old laws and cases do not always properly address how our privacy rights might be affected, and how the government can look at or seize our data in criminal cases. We have written previous articles about when and how the police can obtain data on cell phones before and after an arrest. In many cases, the state has broad authority to access this information because search and seizure case law does not properly characterize the data and the methods used to acquire the data.
Emails are another form of data that are often the coveted by police officers looking to investigate criminal activity quickly and without the checks and balances found in search and seizure law. However, the House of Representatives recently took steps to pass a law that would protect old emails. An old law that people probably are not aware of allowed the government to look at old, private emails if they are more than six months old with only a subpoena, which does not involve much, if any, judicial oversight. It’s hard to believe that the government practically had free reign to look at any of your old emails as long as a relatively short period of time has passed. This was an obsolete law that was written before emailing and texting became common forms of communication. However, this new law would require the government to get a warrant signed by a judge to see any emails, text messages, electronic photographs and instant messages no matter how old they are. The arbitrary six month waiting period to avoid the warrant requirement would be eliminated.
As much of a no brainer as this new law seems to be, keep in mind that this proposed law still needs to be voted on by the full House of Representatives and then move through the normal channels from there. So, while it seems like an obvious law to fix a blatant violation of the constitutional right to privacy, depending on this House of Representatives to do anything helpful is a shaky proposition. Hopefully, this will be an exception, and it will become the law quickly. In the meantime, the government can still read any of your emails and text messages whenever they want and without a warrant as long as they are more than six months old.