- The Washington Times - Thursday, July 18, 2013

The House Appropriations Committee unanimously passed legislation to ensure Americans’ email is private, is covered by the Fourth Amendment and cannot be searched by federal authorities without a warrant.

The legislation was approved by the committee Wednesday afternoon as an amendment to a must-pass spending bill that funds the Treasury, the White House, the federal judiciary and more than two dozen independent agencies — including the IRS and the Securities and Exchange Commission (SEC).

The measure bars any agencies funded by the Financial Services and General Government Appropriations bill from using any funds to conduct investigations that do not treat Americans’ email in the same way they treat “hard mail and other private documents,” according to the amendment’s author, Kansas Republican Rep. Kevin Yoder.  

The bill does not impact the National Security Agency or the FBI, both of which can use special, court-approved procedures to run warrantless searches of email, including that sent by U.S. citizens, for the purposes of counter-terrorism or foreign intelligence gathering.

The measure “affirms to Americans they have the same privacy rights in their email that they have in their postal mail,” said Mr. Yoder in a statement to The Washington Times. 

The move by the second-term congressman follows a months-long cat-and-mouse game lawmakers have been playing with the IRS and other federal agencies about their authorities regarding Americans’ personal email stored by third-party service providers like Google or Yahoo.

Out of date and inadequately drafted legislation governing the issue — the Electronic Communications Privacy Act (ECPA) — has allowed federal agencies to assert that “Fourth Amendment protections did not protect emails the same way it protects postal mail,” because Americans “‘do not have a reasonable expectation of privacy,’ in their email. I completely disagree,” said Mr. Yoder.

Although federal courts have affirmed — and Justice Department guidelines now recognize — that the Fourth Amendment covers e-mail, IRS officials have, in Congressional testimony, generally dodged the question of whether they regard a warrant as necessary to search email.

Records released under the Freedom of Information Act show that, at least until recently, IRS lawyers routinely used subpoenas, rather than warrants, to get email records from third parties.      

“If government agents want to read emails, they should go to court, show probable cause to believe a crime is being committed, and obtain a search warrant just as they would for postal mail and telephone calls,” said Mr. Yoder.

The Appropriations Committee approved the bill, but no date has been set for floor consideration.


• Shaun Waterman can be reached at swaterman@washingtontimes.com.

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