-By Warner Todd Huston
Despite the pressure brought to bear by the public and efforts by Congress, the Obama White House has announced that it will not demand that the FBI get warrants to access email data.
The current law for electronic communications is an ill-fitting scheme that forces law enforcement to get a warrant for emails and other electronic communications that are up to six months old. But for any data older than that the Electronic Communications Privacy Act (ECPA) only requires a subpoena. But these rules don’t take into account the fact that data can be stored on line for far longer than six months.
The original rules written back in 1986 assumed that such data would be harder and/or expensive to store and might be erased sooner than data is today.
Many Americans want these old, outdated rules changed so it is a bit harder for law enforcement to access American’s electronic communications. Pursuant to that a petition demanding that law enforcement, particularly the FBI, get a warrant for any email data it wants had been turned in to the administration as far back as 2013. Last week the Obama administration finally responded to this petition saying that it won’t require the FBI to change its process for accessing electronic data.
It is certainly within Obama’s power to make a procedural change with the FBI to make a policy requiring warrants for older data and the administration did agree that the ECPA is “outdated” and “needs reform.” However, Obama has uncharacteristically decided not to make a change that would preempt the actions of Congress as it contemplates updating the law.
“We know there are still important details being worked out across government and in the halls of Congress. We aren’t going to endorse a single ECPA-reform bill at this time. As any given bill goes through committee and makes its way to the House and Senate floors, the draft is negotiated and modified to address concerns and strengthen the bill,” the Obama administration’s response to the online petition states.
With his famous claim of having “a phone and a pen” ringing across Washington, in nearly any other arena Obama seems to have no compunction at all to acting ahead of or around Congress. But in this case, he’s decided to allow the FBI to continue having a lower hurdle to jump in order to access American’s private email data.
Granted Congress is still in the midst of acting on this situation.
Since last session, Congress has been poised to act, but has yet to do so despite bipartisan support for changing the law. In fact, one of the most promising bills, the Email Privacy Act of 2015 (HR 699), now has the support of a supermajority of Congress.
There is no word yet, though, on just when the bill will come up. In the meantime, Obama has shown that he has no desire to force the FBI and other federal law enforcement agencies to have a harder time accessing our private communications.
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“The only end of writing is to enable the reader better to enjoy life, or better to endure it.”
–Samuel Johnson
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Warner Todd Huston is a Chicago based freelance writer. He has been writing news, opinion editorials and social criticism since early 2001 and before that wrote articles on U.S. history for several American history magazines. Huston is a featured writer for Andrew Breitbart’s Breitbart News, and he appears on such sites as RightWingNews.com, CanadaFreePress.com, Wizbang.com, and many, many others. Huston has also appeared on Fox News, Fox Business Network, CNN, and many local TV shows as well as numerous talk radio shows throughout the country.
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