PORTLAND, Ore. — Americans are guaranteed the right to be secure in their paper correspondence, but online communication enjoys no such protection.
That’s because the Fourth Amendment requires police to obtain warrants to search houses, papers, property and your pockets. But information sent and received online goes through a third party, and anyone with a compelling government interest has a much easier time getting their hands on it.
U.S. Sen. Ron Wyden aimed to use his speech Friday at a Portland tech conference to call for that to change. The Oregon Democrat wants to update the rules by which intelligence agencies operate. He says he also plans new legislation aimed at ending bulk electronic surveillance.
“If you would defend a society built on the principle of individual liberty, you need to recognize that you can no longer rely on the fact that mass surveillance is hard — folks, in the 21st century, mass surveillance is easy,” Wyden’s prepared remarks said.
Wyden challenged the so-called Third Party Doctrine. It holds that citizens’ information in the hands of third parties, like phone companies, becomes business records and is not subject to the same rigorous search warrant process as other personal effects.
Wyden says material sent and received online also needs Fourth Amendment protections.
Federal court rulings made long before Gmail and electronic bank transfers have held that phone calls, deposits and other exchanges that involve commercial transactions are business records, and not constitutionally protected.
But recent decisions have pointed to a new understanding among the judiciary of the shifting nature of electronic communication, including a U.S. Supreme Court ruling that said information contained in a cellphone is protected by the Fourth Amendment.
“The task before us is to figure out how to ensure these principles are upheld in the digital world,” Wyden said in the remarks. “The same protections that apply to your personal papers, conversations and correspondence in the physical world must, by default, protect your privacy in the online world.”
Wyden has called in the past for overhauling the rules for America’s intelligence agencies, ending bulk warrantless surveillance, adding a public advocate to the court that oversees foreign surveillance, and allowing private companies to disclose more about the kinds of requests they get from intelligence agencies.
He has been a vocal critic of the U.S. government’s surveillance practices, some of which came to light last year in a series of disclosures by former National Security Administration systems analyst Edward Snowden.
But the senator has had difficulty gaining much traction on proposals to overhaul the system. Still, he believes that with enough time and enough concern from the American public, change will come.
“The clock is on our side,” Wyden said.
Electronic Frontier Foundation staff attorney Hanni Fakhoury said many of the changes Wyden wants, including revisions to the Third Party Doctrine, could happen immediately if Congress had the will to do so.
Fakhoury said recent federal appellate court decisions have shifted course from decisions in the 1970s, 1980s and 1990s to an understanding of the pervasiveness of electronic communication in daily life, and the need for its protection.
“It’s encouraging to see this coalescing, growing movement getting judges, courts, senators starting to say, ‘You know what? ‘This is not working’,” Fakhoury said.