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E-mail privacy and limited government

By Scott Tibbs, December 7, 2012

Republicans have been looking for a way to "reach out" to more voters. They can do that, and make the libertarian-leaning Tea Party movement happy by joining Democrats in an effort to protect our e-mail from being searched by government without a warrant, as is currently "legal" under federal law.

Of course, whether this is actually "legal" is an open question, given the text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is not much of a stretch to consider electronic communications to be "papers" in the same way that letters and other documents are considered "papers" and protected by the Constitution. Just because e-mail is stored as zeroes and ones on a hard drive somewhere instead of living as ink on paper does not mean it does not meet the definition of "papers" protected by the Constitution.

But we have to deal with the legal climate as it is, rather than what it should be. Until a court challenge comes before a sensible judge who submits to the authority of the Constitution and throws out the warrantless search provision of the Electronic Communications Privacy Act, we should do what we can to protect civil rights legislatively.

The 1986 law allowing searches of e-mail less than 6 months old is clearly outdated and needs to be updated, because we are living in a completely different world than we lived in 26 years ago. The internet revolution has dramatically changed life for individuals and every institution imaginable.

This is why Republicans in the House should join Democrats in restricting the power of law enforcement to snoop through our e-mail without a warrant. First, it is politically smart. The vast majority of voters would be uncomfortable knowing that the government can search through their e-mail with no judicial oversight. This would make the Tea Party movement happy as well as court moderate and even some liberal voters.

More importantly, this is simply the right thing to do. This would show Republicans submit to the letter and the spirit of the Constitution and would protect us from government intrusion into our private communications. If there is a legitimate law enforcement or security-related reason why government needs access to someone's Hotmail account, then that can be pursued. Absent a warrant, government has no business snooping there.