News that the Department of Justice secretly gained extensive access to the telephone calling records of Associated Press reporters and editors should raise serious questions about the state of privacy protections under current law.
All this took place without a warrant, and ― because the records were held by a “third party” phone company — without reference to constitutional protections against “unreasonable search and seizure.” On the authority of a mere subpoena, issued without any review by a judge, the government pored over call lists from journalists’ office and personal phones, monitoring who called whom, when they called, and how long they talked.
Most Americans are shocked to learn that, because of significant gaps in the law, law enforcement can quietly look at all of our phone records, our old emails, and the documents we store online — without ever getting a search warrant or even notifying the person whose records have been inspected.
This is chilling. That’s why, in the Massachusetts Senate, I have filed legislation known as the Electronic Privacy Act to protect our privacy and guarantee that our system of checks and balances applies to our digital lives.
When Congressman Ed Markey made a series of requests to the telecom companies to find out how often they receive these demands to turn over customers’ personal information, the shocking answer was more than 1.3 million times in 2011 alone. And that’s just the tip of the iceberg — it doesn’t include requests to Google, Yahoo, Facebook, and a host of other major internet companies that hold private information about our personal relationships, thoughts, and habits.
Under an outdated federal law with a misleading name, the Electronic Communications Privacy Act, police and prosecutors can rummage through your Gmail, look at who you’ve corresponded with and when, and even read every email you’ve sent or received more than 180 days ago.
If police rifled through your correspondence and diaries at your home without a warrant, you would have legal recourse because of the Fourth Amendment. But many courts have failed to recognize similar protections when you keep the same material on Google’s servers. That false distinction makes no sense in the digital age.
The AP phone monitoring scandal underscores the need for greater checks and balances on government scrutiny of private communication. Government data mining of Americans’ personal calling records and data held by phone and internet companies should require more than a subpoena, which is simply a demand for information from an authorized government agency. These protections are essential whether the target is the news media or an ordinary citizen.
The Electronic Privacy Act would make our statutes say what most of us assumed they said already — that our phone and Internet records are private, unless police have probable cause to believe we’re involved in criminal activity or the information is needed to protect lives in an emergency. This simple standard has worked for search warrants for hundreds of years. Now we must update it to apply in an era when many of our “papers and effects,” which the constitution aims to protect, are kept at our service providers’ homes instead of our own.
Requiring a search warrant does not simply protect our privacy. It also protects public safety in the Commonwealth by ensuring that police are not wasting their time and energy on electronic wild goose chases when they could be focused on thwarting real criminal activity.
We find ourselves in this vulnerable situation because Congress has failed to act. But Massachusetts is not powerless. Indeed, our state senate can, and should, be a leader in protecting our privacy.
Long before Massachusetts was a high-tech leader, we led the nation in developing laws to safeguard our liberty. Today, we must lead again — to make sure privacy protections keep pace with technology and renew our freedoms in the digital age.