Okay, sure, when Grover Norquist and the ACLU team up, we’re all supposed to think, “Look, Grover Norquist and the ACLU are teaming up — what unicorn of a cause could have yielded that?” Sometimes, the spectacle of uncommon agreement is a gimmick that disguises bad ideas, like bipartisan support for corn-state ethanol subsidies. But not in this latest case.
In Politico on Tuesday, Norquist and Laura Murphy, director of the ACLU’s Washington Legislative Office, co-signed an op-ed about a digital privacy issue that most Americans have probably never heard of — but that affects the huge numbers of them. “In the age of the Internet,” they write, “your privacy is not Fourth Amendment safe.”
Government agents cannot tap your phone without a warrant issued by a judge based on some indication you are involved in wrongdoing, but the government claims the authority to read your emails without a warrant. The government can’t open your postal mail or seize papers from your home without a warrant, but it says it can read any private and sensitive documents you’ve stored in the Internet “cloud.”
We on The Post Editorial Board have written repeatedly about the bizarre twist in federal law that gives government authorities unsupervised access to Americans’ private documents, to a degree most Americans would probably find unbelievable. (Full disclosure: The Post belongs to the Newspaper Association of America, a part of the Digital Due Process Coalition, which is lobbying for reform.) All government agents need is a subpoena they issue themselves, and they can legally review anything you’ve stored on a third-party drive for more than 180 days — saved e-mails on widely used Web e-mail services, for example.
Congress certainly didn’t mean for this law to have the reach it now does. Lawmakers wrote it in 1986, back when few Americans even used e-mail, and “cloud computing” sounded like something that happened in programmer heaven, not the everyday exchange and storage of huge volumes of information between services such as Gmail and the millions who use them. There’s even discussion about whether the law is so obsolete that companies even need to respect it. Google, for one, says it requires government warrants before it turns over certain sorts of information.
But you don’t have to take my word for what Congress meant to do back in 1986 — take the word of the law’s author, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.). Last year Leahy steered his committee toward reforming the law, passing an amendment out of his committee that would have allowed law enforcement some latitude in case of emergencies such as kidnappings but otherwise limited the authorities’ ability to snoop. Yet the issue still hasn’t gotten much attention, and Republicans so far haven’t enthusiastically embraced reform. Perhaps Norquist will help them along.
This issue also says something about the state of Congress. Updating the law is so obviously necessary that whether it happens is a measure of the federal legislature’s basic functioning. Can Congress tie its legislative shoes? So far, the answer appears to be “no.”