The Securities and Exchange Commission (SEC) wants to hijack pending legislation to snoop on Google and Facebook accounts without paying attention to Fourth Amendment protections. Commission members think they should be able to demand access to anything we store with Internet service providers without having to show probable cause that a crime is being committed. By subpoenaing Google or Facebook, for example, the SEC wants access to all the content in a person’s account. Unlike an individual under investigation, those companies don’t have the ability to determine what is privileged or unrelated to an investigation in a customer’s account. When subpoenaed, they will surrender everything, no matter how privileged it is or how irrelevant to an investigation.
As a civil regulatory agency, the SEC doesn’t have the warrant authority that criminal law enforcement agencies have. The history of our legal system has kept criminal and civil investigations separate. What it’s proposing to do is acquire the power of a warrant with the lower standards of proof needed to obtain a subpoena. The SEC actually wants to conflate the differences between civil and criminal investigations by requesting that Congress create a “civil warrant,” which would give it almost unchecked authority to examine anything we store online — thousands of emails, financial records, calendars, diaries, photographs — anything.
Congress is currently working on updating the Electronic Communications Privacy Act, a law written for a world that no longer exists. It was written in 1986 to protect the privacy of the relatively few people and businesses that were just starting to use the Internet to communicate. In 1986, there wasn’t a World Wide Web, cloud computing, broadband, smartphones, social media or much of the technology we take for granted today.
In 1986, email service providers didn’t offer unlimited free storage capacity on their servers. Instead, people downloaded their email and it was wiped off the service provider’s computers. It made sense then for the Electronic Communications Privacy Act to say that the government needed a warrant to access email only if the communications were less than 181 days old. No one imagined anything would be stored online longer than that.
Today, people regularly store emails indefinitely for free and keep their most sensitive records in the Internet cloud. Current law — letting law enforcement read digital documents with a mere subpoena to your service provider without your knowledge — is an intolerable invasion of our privacy that circumvents our Fourth Amendment protections against unlawful search and seizure.
That’s why Congress has moved to reform the act and bring it into line with the realities of the digital age. Sens. Patrick J. Leahy, Vermont Democrat, and Mike Lee, Utah Republican, have introduced legislation that would require government and law enforcement to go before a judge and obtain a search warrant before requiring service providers to disclose the private and proprietary communications and records we keep online. Their bill is supported by policy advocates across the political spectrum, former prosecutors, Fortune 500 companies, major trade associations and small start-up businesses.
In short, just about everyone agrees that the reforms proposed by Mr. Leahy and Mr. Lee are long overdue, but the subpoenaing extraordinary power grab is not only indiscriminate, it’s entirely unnecessary. The SEC has had the authority to enforce subpoenas against the targets of its investigations long before Google or Facebook existed. It can freeze a person’s account to ensure nothing is deleted while its subpoena is enforced. It can subpoena transactional data about an account — when it was started, how often it’s used, how much content is stored in it — so the target of an investigation cannot falsely claim he doesn’t have an account or never used the account. Nothing in the Leahy-Lee legislation would change the authorities the commission already possesses.
Since our founding, Americans have possessed the right to be “secure in our persons, houses, papers and effects.” That right must not be made meaningless by technology innovations, by laws that have outlived their purpose or by government agencies that want to expand their power at the cost of our liberty.
Reforming Electronic Communications Privacy Act would ensure that our emails are as protected from unreasonable search and seizure as our postal mail, and the records we store in the cloud are as protected as the records we store at home in a filing cabinet. The Constitution’s restrictions on the power of government agencies protect Americans from government overreach and abuse. The Securities and Exchange Commission should not have a carve-out from those protections.
Grover Norquist is president of Americans for Tax Reform.