If you live in the USA and you’re worried about someone reading embarrassing emails in your Gmail inbox, you may soon be able to relax a little. In case an amendment proposed by Senate Judiciary Chairman Patrick Leahy (D-VT) passes, police will need a warrant to get access to your email. As it stands now, they can get it by just asking.

Introducing the ECPA

Back in 1986, email existed, but it wasn’t nearly as ubiquitous as it is now. At the time, lawmakers didn’t really know how to deal with it, and they certainly weren’t thinking very far forward. When the Electronic Communications Privacy Act (ECPA) was introduced in 1986, email was treated as a combination of regular mail and a phone call. That might have been alright then, but email has come a long way since.

Because of the definition email was given, it was treated more like physical mail, meaning that if you hadn’t downloaded it from the server after 180 days, it was considered to be abandoned. Further, because at the time email was generally only shared between businesses, the ECPA treated email as essentially another business document, meaning that it can be obtained by police without a warrant.

If It’s Broke, Fix It

You probably don’t need to be reminded, but times have changed. Email is everywhere, and with companies like Google constantly expanding its email storage space, people delete their email less than ever. In fact, the email we don’t delete is often more important and contains much more personal information that the email we do delete.

In the current incarnation of the ECPA, all that archived email is essentially fair game once it’s over 6 months old. This doesn’t just apply to email either. Google Documents, Facebook, photos, online journals and much more are subject to these same rules, regardless of what your privacy settings may be.

All that law enforcement agencies need to do to access your personal data is state that it is relevant to an investigation. You don’t even need to be personally under investigation as long as they believe that something in your mailbox may be a help to their case.

A 2010 ruling by the Sixth Circuit Court of Appeals stated that the Fourth Amendment protecting unreasonable searches and seizures also protects email, regardless of whether it is over 6 months old. This is a nice start, but there’s a lot of room for interpretation, and the new amendment would make users’ rights much clearer.

Looking Forward

The amendment Senator Leahy is hoping to see passed would ensure that email on other private online data would be treated as we consider it: personal communication. Leahy proposed a bill calling for very similar changes in May of last year, but it never even came to a vote. This time, the proposed changes would be included in a larger bill that is aimed at revising the 1998 Video Privacy Protection Act (VPPA).

With cloud computing becoming more and more a part of our daily lives, it is clear that this law and laws like it need to be revisited to recognize the ways that the world has changed since they were introduced.

Knowing how easy it may be for the government to get their hands on your personal data, are you taking any steps on your own to improve your privacy?