Chertoff: Protect electronic conversation privacy today

Over a century ago, Alexander Graham Bell invented the telephone and it was soon within widespread use. Not surprisingly, police soon saw the value of listening in on private phone conversations, and wiretappingwas born. But in 1933, Congress decided that interceptions of phone calls were an invasion of privacy comparable to a physical search under the Fourth Amendment. So, in order to listen to the content of a telephone call through a wiretap, police must first get a warrant and demonstrate to a judge that there is probable cause to think criminality is afoot.

But what should be the rule when the conversation is by email and the substance of the conversation is stored on a server owned by an Internet service provider?

Email, after all, is just an extended conversation. Unlike a business record, letter or even a diary, it is typically not the product of considered thought and analysis. Rather, like an oral conversation, email typically has the characteristic of spontaneity and informality. Email communications today (and their close cousins, text messages, tweets, chats and the like) are filled with typographical and grammatical errors, poor turns of phrase, unsuccessful attempts at sarcasm and, frankly, often ill-considered judgments and opinions.

To be sure, unlike a face-to-face or telephone conversation, these newer means of electronic communications are a bit slower. But even that difference is overstated, since many text discussions or twitter exchanges happen in near-real time as an effective substitute for direct oral communication.

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Indeed, the only real difference between electronic communications and the telephone these days is that electronic systems are configured to automatically create and indefinitely retain a record of the conversation.

Because they instinctively and practically recognize this similarity, American citizens increasingly want equivalent privacy protections for their own electronic and telephonic communications. They want law enforcement in the U.S. to be responsive to their new customs and practices. Through our work with tech companies, we also know that these outdated rules limit their global business opportunities.

So, the time is ripe to revisit how electronic communications are intercepted by law enforcement. In an ideal world, we want to both improve law enforcement access and regularize it while affording greater privacy protections to Americans.

The current law that governs electronic surveillance of emails is known as the Electronic Communications Privacy Act (ECPA). When it was enacted in 1986, iPads didn ' t exist. Windows 1.0 was Microsoft ' s operating system. Indeed, the Internet was still a novelty.

Perhaps most importantly, at the time ECPA was written, the idea of having most of your email (or any data for that matter) stored somewhere else was almost inconceivable. The cost was prohibitive. When ECPA was first being considered, floppy disks were increasingly being put in use as hard disk drives were seen as large and expensive. Today, consumers purchase additional storage capacity with the click or tap of a button on their smartphone or tablet.

As a result, the ECPA was written to treat most email like a conversation and it adopted the premise that any email older than 180 days had to be of little practical value in which no privacy interest existed. Therefore the rules put in place in 1986 were purposeful — unopened email stored for longer than 180 days was considered of negligible privacy value, and the government, by simply issuing a subpoena, could access it.

That isn't the reality today. For Americans in 2015, sending your email through the cloud is just like making a telephone call. Email, texts, tweets and chats are the essential communications service today — not phone calls of the past. They are fresh and alive and their volume far exceeds that of old time letters and records. And email conversations themselves may extend over many weeks, with extended email threads. In short, our privacy expectations and social practice have changed but the law has not.

That's why it's right that law enforcement should be required to get a warrant whenever it wants the content of an email conversation. Modern usage and expectations no longer support the principle that warrants be required for fresh emails of less than 180 days age, but no longer on day 181. This need not be a prohibitive obstacle for law enforcement — if police are able to establish probable cause to obtain recent emails, it should not be more difficult to establish probable cause for older emails. What extension of the warrant will do, however, is require seizure of all emails of whatever age to be particularized and selective; police will not simply be able to indiscriminately subpoena all emails more than 180 days old that sit on a server.

It is time, and past time, to update the ECPA and better protect Internet users. Bipartisan bills like the Law Enforcement Access to Data Stored Abroad (LEADS) Act recently introduced in the Senate, will fix this problem and protect our electronic conversations. Thirty years is forever in cyberspace and it is time the law caught up.

Michael Chertoff, executive chairman of The Chertoff Group, was secretary of Homeland Security from 2005 to 2009. The Chertoff Group has clients whose businesses relate to the issues discussed in this column.

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