Whether or not governments should be allowed to sift through particular personal assets has been a subject of debate for longer than any of us have ever lived. Much more in the 21st century, the definition of “personal assets” has been extended to a variety of things such as emails, phones, SMS messages, private Facebook posts, and the odd selfie.
On 27 April 2016, members from both parties in the U.S. Congress passed The Email Privacy Act which would effectively force the government to seek a warrant before asking a tech company to hand over personal emails.
Similar provisions exist in the Charter of Fundamental Rights of the European Union, mentioning the “right to be left alone” and a “respect for private life.” “Why is email different from an individual’s papers within their home?” you may ask. But perhaps the question should be, “What made it difficult for the U.S. government to treat personal assets like emails the same as a safe in a house’s attic?”
We seem to apply different rules to different situations on personal assets (such as public pictures that people regret posting still being considered private property depending on who you ask), which complicates what we define as private. Just how private is a picture of your dog that you set as your avatar on a forum? And, more importantly, how private are your emails when they aren’t stored in your own computer but on a server several miles away from your home?
These questions led to an ethical dilemma. Although the spirit of the Fourth Amendment to the U.S. Constitution is very clear on leaving people’s things alone, there are several ways to demonstrate that it leaves a bit of leeway when it comes to things like people’s vehicles. In many cases, the police can search a car without a warrant, especially if it is impounded.
The one place where you can be sure that the fourth amendment applies (for the most part) is within a person’s house. Unless you live inside your email provider’s data center, it’s very likely that your email is separated from you by hundreds or even thousands of miles. This can provide all sorts of arguments for the legal definition of personal effects to be stretched a bit.
What U.S. Law Says About Email
Before The Email Privacy Act, according to U.S. law, every email that is older than 180 days and is stored online can be accessed by authorities. Newer messages required warrants.
The reason why this is relevant, even if you live outside of the United States, is because companies based there have something called an MLAT (mutual legal assistance treaty). Through this treaty, foreign investigations into holders of email accounts that are hosted in the United States can be carried out with the assistance of U.S. authorities. Once a case is handed over to a U.S. attorney, the procedure must follow the country’s laws in the process of acquiring evidence and information. This could possibly mean that a warrant would be required even if the person holding the email is not a U.S. citizen, since the company hosting it is based there.
Do you think your government should be required to submit a warrant before accessing your personal emails? Tell us in a comment!