By now, it is common knowledge among privacy-concerned Americans that Federal agencies have the wherewithal and the desire to access private email communications without warrant or accusation of criminal activity. But in case there was any question as to whether that is legal (it isn’t, according to the Constitution’s 4th Amendment), the Senate killed a key portion of a new bill that would have required acquisition of a warrant prior to government snooping.
The Video Privacy Protection Act was adopted by Congress in 1988 following controversy when Washington City Paper published the video rental history of failed Supreme Court Justice nominee Robert Bork. (Ironically, Bork did not believe that the U.S. Constitution mandates a general right to privacy.) The law prohibits the disclosure of video rentals without customer consent.
Social networking and online video streaming websites have more recently lobbied Congress to update the law, arguing that in today’s always-connected society people want to share with their online friends what television shows and movies they watch on platforms like Netflix. The 1988 provision barred Netflix from automatically publishing viewing information to social networking sites.
The Senate voted to amend the law last week. But while lawmakers caved to the marketing aspirations of special interests, they struck down another key portion of the legislative package that would have protected Americans from warrantless government email snooping.
Under the 1986 Electronic Communications Privacy Act, the government can obtain e-mail or other electronic communications without a warrant as long as the content has been stored on a third-party server for at least 180 days. This is often done via what is referred to as an administrative subpoena, an information gathering tool widely used for Federal investigations. The provision removed by the Senate would have made warrants mandatory.
“If Netflix is going to get an update to the privacy law, we think the American people should get an update to the privacy law,” Chris Calabrese, the legislative counsel for the American Civil Liberties Union, told Wired.