Is the SEC Obtaining Emails Without a Warrant?

Mark M. Jaycox
Electronic Frontier Foundation

Updates to the email privacy law called the Electronic Communications Privacy Act (ECPA) are long overdue. It’s common sense that emails and other online private messages (like Twitter direct messages) are protected by the Fourth Amendment. But for a long time, the Department of Justice (DOJ) argued ECPA allowed it to circumvent the Fourth Amendment and access much of your email without a warrant. Thankfully, last year it finally gave up on that stance.

But now it appears that the Securities and Exchange Commission (SEC), the civil agency in charge of protecting investors and ensuring orderly markets, may be doing the same exact thing: it is trying to use ECPA to force service providers to hand over email without a warrant, in direct violation of the Fourth Amendment.

EFF and the Digital Due Process Coalition, a diverse coalition of privacy advocates and major companies, are fighting hard to push a common sense reform to ECPA. The law, passed in the 1980s before the existence of webmail, has been used to argue that emails older than 180 days may be accessed without a warrant based on probable cause. Instead, the agencies send a mere subpoena, which means that the agency does not have to involve a judge or show that the emails will provide evidence of a crime.

Contrary to the position taken by the DOJ, the courts, the public at-large, and EFF, the SECasserted last week that it can obtain emails with simple subpoenas, issued under ECPA. The Chair of the SEC, Mary Jo White, tried to reassure Rep. Kevin Yoder that the SEC’s “built-in privacy protections” make it ok. Unfortunately, Chair White wouldn’t explain what are the exact “privacy protections.” Rep. Yoder, the sponsor of HR 1852, The Email Privacy Act—a bill with over 200 cosponsors that updates ECPA—was rightfully dubious and tried to no avail to get the Chair to explain why the SEC thinks it can use ECPA to get around the Fourth Amendment.

Just because your emails are on your computer, must not mean they have any less protection than if they were printed on your desk. Many other agencies disagree with the SEC’s approach and recognize the Fourth Amendment covers all private communications—whether paper or electronic. It’s time for the SEC to update its practices so that it’s inline with the courts, public opinion, and with other agencies.

It’s also time for the White House to send a clear message to all of its executive agencies. Remember, the SEC consists of five presidentially appointed commissioners. Since November, the White House has failed to respond to a White House Petition demanding ECPA reform. The White House must pronounce loud and clear that it supports HR 1852, The Email Privacy Act,and that government agencies like the SEC should not be using ECPA as a run-around to the Fourth Amendment.

Many courts, including the Sixth Circuit in United States v. Warshak, have already ruled that emails and other private communications are protected by the Fourth Amendment. Congress, through members such as Senators Patrick Leahy and Ron Wyden; and Representatives Kevin Yoder, Tom Graves, and Jared Polis, are pushing common sense reforms to ECPA like HR 1852 The Email Privacy Act. The bills are slowly making its way through Congress, but we can speed them up. Tell your Representative now to support HR 1852 so that we don’t leave email privacy laws stuck in the 1980s.

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