A revised Senate bill has caused quite a stir, and rightfully so. The changes allow over 22 federal agencies warrantless access to Americans’ electronic information, such as e-mails, Google docs, Facebook and Twitter messages. This access requires only a subpoena, rather than a search warrant signed by a judge, issued on the basis of probable cause. Further, it also allows state and local law enforcement to search through electronic correspondence on non-public systems, such as university networks, without a warrant.
Law enforcement may access Americans’ accounts if it claims an “emergency” situation exists. Service providers, before contacting their customers to inform them that their accounts have been subject to search, are required to notify law enforcement. Subsequently, notification of the customers is delayed from 3 to 10 business days, with the potential for postponement by up to 360 days.
Ironically, in its original form, the bill was touted as legislation enhancing Americans’ privacy protections, but it was rewritten in response to concerns of law enforcement. Now, it appears that this bill has serious Fourth Amendment issues, as this type of access would probably constitute an unreasonable search and seizure. This issue is an example of the difficulty in closing the gap between rapidly developing technology and the state of the law, and also highlights the tension between personal freedoms and collective national safety.
The article can be read here.