Texas at Forefront of Email Privacy Laws

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Texas residents can sleep a little more soundly at night knowing that state law enforcement agents aren’t trolling through their email without a warrant. Gov. Rick Perry signed a bill last month mandating that police show probable cause before snooping into a Yahoo or Hotmail account.

It sounds like a no-brainer, but Texas is actually the first and only state so far to enact such a measure.

The federal government lags behind in passing technology laws that actually comply with Fourth Amendment protections against unreasonable search and seizure. The court system is on the right track but not yet across the finish line. In the meantime, police can rifle through people’s Amazon receipts and personal communications at their leisure.

Currently, law enforcement agents in most states as well as the federal government can look at any email they want without a warrant if it has been opened by the recipient, or if it is more than 180 days old. In fact, federal agents can still get access to Texas residents’ email with no warrant, as their new law only applies to state and local cops. It seems like a strange and invasive vulnerability considering many people keep years worth of email stored in their Gmail and other Web mail accounts.

The discrepancy is due to the law’s lagging, halfhearted attempt to keep up with technology. The federal Electronic Communications Privacy Act was enacted in 1986, when email use was only a tiny fraction of what it is today and most messages were downloaded onto local machines as opposed to being stored on cloud Internet servers.

The Senate Judiciary Committee did approve an update to the law last spring which would require warrants to get emails and other personal communications and data that is stored online, The U.S. Department of Justice has also acknowledged that greater privacy protections would be appropriate. The Senate failed to pass a similar measure last year, however, and it’s still unclear what the fate of this year’s version will be.

 

Expectations of Privacy

Appeals courts have varied in their reaction to the outdated law. The 9th U.S. Circuit Court of Appeals has ruled that law enforcement does need a warrant to read email that has been opened, but not after it’s been stored for 180 days, while the 6th Circuit decided that even reading six month old email should require probable cause.

The Supreme Court could make a broad ruling eventually, or Congress could get its act together, but for now Texas is alone at the front of the pack in email privacy. “I think it’s a step in the right direction, just from a standpoint of individual rights,” says Everett W. Newton, a Dallas-area criminal defense attorney with Berlof & Newton. “In terms of Fourth Amendment rights, it comes down to what do we have a reasonable expectation of privacy in?”

Attorney Everett W. Newton  headshot

Everett W. Newton

“I think it’s reasonable to expect you have privacy in an email,” Newton says. “Unless the state has probable cause to think a crime has been committed,  you should be able to communicate privately with others and have some privacy in that.”

Ultimately, though, when technology outpaces law it’s up to our courts and our lawmakers to rebalance what is considered reasonable. “Our founding fathers I don’t think envisioned email, Facebook and things like that,” says Newton. “But the Fourth Amendment is so broad, to address these ever-changing technologies and lifestyles they couldn’t anticipate.”

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