The Cloud, Warrants and Constitutional Rights

Written by Jim Dempsey

On Wednesday, I was very pleased to participate in an event sponsored by Hackers and Founders on what I consider to be one of the most important issues facing us in the digital age: the relationship between citizen and government.

The Fourth Amendment to the Constitution is supposed to protect us against unreasonable government intrusions on our privacy.  It protects our “persons, houses, papers and effects.”  Pretty much everyone, including officials at the US Justice Department, agree that “papers” includes the digital content of our laptops, tablets and mobile phones.

However, the Justice Department claims that the Constitution provides no protection at all to data once it leaves your device and is stored with a service provider. In the era of cloud computing, that’s pretty much everything.  Emails, texts, documents, photos, calendars.  The government claims you have zero Constitutional rights in anything stored with a service provider (Google, Dropbox, Salesforce, AWS, and on and on).  And if you happen to be a company storing data on behalf of your users, the government claims it can force you to disclose that data with a mere subpoena, issued without the approval of a judge, and can bar you from even telling your customer what is happening.

Unfortunately, the courts have been slow in extending the Fourth Amendment to new technology. And the Electronic Communications Privacy Act (ECPA) of 1986, the federal law that defines the rules for government access to private digital information, is woefully out of date. As a result, the Justice Department argues, it does not need a judge’s approval before requiring service providers to disclose stored data.

This needs to change: If government agents want your data, they should come to you or they should get a warrant from a judge.

The good news is that legislation has been introduced in Congress to update the law and establish a simple rule requiring government agents (except in emergencies) to get a warrant if they want to compel companies to disclose the data they store on behalf of their customers.  The legislation, sponsored by Committee Chairman Patrick Leahy, is up for a vote on Nov. 15 in the Senate Judiciary Committee.  Amendments will be offered to weaken the bill’s privacy standards and to make ECPA even more complicated than it is today.  It is important that Committee members hear from their constituents to support the Leahy bill and to oppose weakening amendments.  For a list of members of the Judiciary Committee and their phone numbers, visit

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