Spying and Snooping on Americans by Government

Like most Americans, I store a lot on my computer and on my phone: family photographs, personal calendars, emails, schedules, and even weekend to-do lists, or, as my wife calls them, honey-do lists. But this information stored on a phone like the one I have here is not private from the prying, spying eyes of government .

Most Americans have no idea that Big Brother can snoop on tweets, g-chats, texts, Instagrams, and even emails. Anything that is stored in the cloud is available to be spied on by government, as long as it is older than 180 days.

Now, why is that? Well, it goes back to the outdated Electronic Communications Privacy Act of 1986. That act protects the privacy of emails that are less than 6 months old. 1986, those were the days before the World Wide Web even existed. Many of us--I do--have staff that weren't even born before 1986.

We stored letters in folders, filing cabinets, and desk drawers. No one knew what the cloud was because the cloud didn't even exist. There was not any broadband, no social media, no tablets, or smartphones.

The relatively few people who used email--and I remember when email was invented--never imagined keeping emails longer than it took to send it or read it. So it was perfectly reasonable that, in 1986, lawmakers tried to protect emails, but only did so for 180 days. Who would keep anything online for longer than 6 months? Well, three decades later, we know. Everybody stores their emails.

Under current law, every email and text, every Google doc and Facebook message, every photograph of our vacation, is subject to government inspection without a warrant, without probable cause, and without our knowledge if it is older than 6 months. That is an invasion of privacy.

Constitutional protection for 6 months only? That is nonsense.

What is worse, some government agencies don't want the law changed. The Securities and Exchange Commission is lobbying to keep the law on the books. Why does the SEC want to maintain this spying ability? Well, I suspect they want to be able to read our personal financial records and communications without the constitutional protection of a search warrant and without our knowledge. Spying on the citizens by government sounds like conduct reminiscent of the old Soviet Union, to me.

The SEC is not the only government agency that has access to emails over 6 months old.

Any government agency can go and confiscate emails older than 6 months, without a warrant, without probable cause, and without knowledge of the person. This is a clear violation of the Constitution, in my opinion.

If you go back to snail mail and you write a letter and you put a stamp on it and you put it in the mailbox, that letter floats around the fruited plain until it ends up in somebody's possession. Government generally cannot seize that letter without a warrant and go in and snoop around and look in there and see what it is.

Email is a form of communication. Why should government have the ability to snoop around in our personal emails? They don't have that right, even though they have the ability.

Whatever our political disagreements, on both sides, most Americans , I believe, share the conviction that privacy is protected by the Fourth Amendment of the U.S. Constitution: to protect us from unreasonable searches and seizures from government ; protect us in our persons, houses, papers, and personal effects.

Government agents can't raid homes or tap into phones or read mail without showing a judge they have probable cause that a crime was committed; then a search warrant must be obtained.

I was a judge for 22 years in Texas, and officers would come to me with search warrants, and I would read and see if they had probable cause. If they did, I would sign a warrant. That is what the Constitution requires before you can go snoop around and spy on Americans . Why should our possessions and communications be less private just because they are online?

Well, they shouldn't be. That is why I have teamed up with Representative Zoe Lofgren, on the other side, and lots of other Members of Congress in both parties, to introduce legislation to update the outdated ECPA law. There is also a bill in the Senate that enjoys the same support.

Our bills restore ECPA's original purpose, to protect privacy in the ways we live, communicate, learn, and transact business and recreate today. This legislation would protect the sacred right of privacy from the ever-increasing spying government trolls in America.

Our mission is simple: extend constitutional protections to communications and records that Americans store online for any amount of time. There is no need to delay. The bill is written. The votes are there. Let's pass the legislation.

Technology may change, but the Constitution remains the same. Thomas Jefferson said in the Declaration of Independence:

Government is created to protect our rights.

It is about time we make government protect the right of privacy, rather than violate the right of privacy.

And that is just the way it is.


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