January 28, 2013

EVER SENT an embarrassing e-mail? Ever gotten one you’d rather that others not see? Read this editorial if you use Gmail. Or if you have a Dropbox account. Or if you back up any of your files to Google Drive, Apple’s iCloud or any other remote drive that you can’t hold in your hand. Though some argue that the Fourth Amendment overrides it, a federal statute allows law enforcement agents to view material on these and many other common electronic storage services without a warrant, as long as that material is at least 180 days old.

The paper credit card applications and car insurance solicitations that clog your mailbox enjoy stiff privacy protections. Highly sensitive e-mails do not. Google just reported that it received 8,438 government requests for user data in the last half of 2012; the law’s flimsy privacy protections should not comfort anyone.

The story of the Electronic Communications Privacy Act (ECPA) is an archetypal example of technological reality vastly outpacing Washington’s ability to adapt. When Congress wrote the law in 1986, its provisions made some sense. Few Americans used e-mail at all, and the e-mail services that existed stored messages for only as long as it took users to download and read them — not in perpetuity, as many do now. Ubiquitous cloud computing — in which people store their documents and other files not on their computing devices but on a server somewhere else — was also a far-off dream.

Now many Americans spend hardly a waking hour without using one of these services. (This includes journalists: The Newspaper Association of America, to which The Post belongs, is part of the Digital Due Process Coalition, which is lobbying for reform.)

Sen. Patrick J. Leahy (D-Vt.), ECPA’s author, has made updating the law such a priority that he remained chairman of the Judiciary Committee this year rather than attempt to take the Appropriations Committee’s gavel. Last November, he managed to pass out of his committee an ECPA amendment that would have removed the 180-day rule, requiring law enforcement agents to obtain search warrants based on probable cause before reading through electronic communications. But lawmakers failed to advance the measure before Congress adjourned this month, so Mr. Leahy must now start over.

It’s strange enough that ECPA has survived unamended for this long; it would be senseless for it to persist any longer. Mr. Leahy’s amendment included exceptions to the warrant rule in certain emergency situations, such as kidnappings, dulling the argument that his new requirements would be too burdensome on law enforcement.

Yet Mr. Leahy does not have a Republican co-sponsor to help him shepherd it through Congress, nor has the White House spoken up. House Judiciary Committee Chairman Bob Goodlatte (R-Va.)said that “ECPA is something that Congress should look at closely.” We hope that careful inspection will lead him and his GOP colleagues to conclude that reform is embarrassingly overdue.