The relevance of the proposed changes in the legislation is caused primarily by the fact that currently there is a need for better legal regulation of relations connected with illegal violation of individual rights to privacy. From the fact of how perfect the constitutional and legal guarantees of these rights are in general and the right to privacy of the individual communications, in particular, in many respects, the effectiveness of implementation is defined.
One of the main guarantees of the right to privacy of correspondence, telephone conversations, postal, telegraph and other communications is the general constitutional duty of the state, which is in the recognition, respect, and protection of rights and freedoms.
Currently, federal agencies can request the contents of unopened-mail messages if they are stored in the user box on the public server for 180 days or more, according to the Stored Communications Act. In this case, the letter is recognized as the "abandoned" and to access them authority should only present appropriate justification, that information may be useful for the investigation. If the content is stored less than 180 days, you need a court order.
In general, there is a legal interpretation that all cloud services is a "third party". When transmitting information on their storage, users allegedly knowingly waive privacy. Individuals are notified if their home or, for example, computer hard drives are checked by investigators, but now the authorities have the opportunity, they are using it in thousands of cases - keep in secret their actions in data verification, stored in the "cloud". However, in the case of e-mail is the valid analogy to the usual mailbox, access to which is considered a violation of the secrecy of postal correspondence. Access to the content of letters without a court order is the violation of the US Constitution. What about public awareness? Nowadays, this situation looks like the history of Fourth Amendment introduction. We have a huge field and almost no regulation, but thousands of precedents each year.
On the other hand, the government establishes a mechanism for limiting these rights. Conducting operational search actions that restrict the constitutional rights to privacy of correspondence is allowed on the basis of a court decision and only if there is information about illegal acts: the signs of a planned or committed a wrongful act for which a preliminary investigation is necessary; about persons preparing, committing or having committed a wrongful act for which a preliminary investigation is necessary; about events or actions that threaten the state, military, economic and environmental security.
I would like to see an amendment to the US Constitution that you would cover all issues of "cloud" rights, and especially the right to be informed if your data is under investigation.
The use of electronic mailboxes is not clearly established in the law, the question arises whether electronic communications of citizens sent and received by means of electronic mailboxes are under protection. To answer this question it is necessary to analyze the nature and mechanism of functioning of electronic mailboxes.
All email accounts can be divided into 2 categories: Electronic mailboxes, users can create their own on own e-mail services; Electronic mailboxes that are created on public postal services.
Electronic mailboxes of the first category are less popular since for their creation it is necessary to have special knowledge in the field of Internet technologies, as well as a domain name. The mailboxes created for the needs of organizations imply the presence of an electronic mailbox on own mail service. Electronic mailboxes belonging to the second category are more numerous. They mostly serve the interests of individuals, to create such box no special knowledge is not required, you must fill out a simple form on the website of the public service and receive e-mail box in the using.
The Constitution does not explicitly state that a citizen has the right to privacy of electronic messages, but it is clear that electronic messages subject to the concept of communication. Actions aimed at the violation of the secrecy of correspondence and other communications should be classified as a crime in accordance with first and fourth amendments to the United States Constitution including in violation of the secrecy of electronic communications. However, there are a number of obstacles in practice to apply the first and fourth amendments. And it gives a loophole for unfounded searches and violation of the right to free speech. Among them: the lack of legal regulation of the use of electronic mailboxes and cloud; the insufficient experience of judicial practice in this area; lack of qualifications of law enforcement, including investigation, in the operation of electronic communication systems; encouraging by the state to such searches; difficulties and reluctance of companies to defend the rights of clients.
Thus, for an unambiguous interpretation of the actions aimed at breaching the confidentiality of e-mails and information stored in the social services, it is necessary to amend the constitution and formalize following points:
Electronic mailbox created by the user on the public postal service is considered to belong to the citizen if registration forms are filled with real data of the citizen. Otherwise, the electronic mailbox is considered not belonging to citizens, in case of violation of the secrecy of correspondence to this e-mail box, body of a crime is absent because there is no object of the crime.
This regulation is necessary to fix at the official level, for the purpose of clarifying the law enforcement. Thus, in the case of indication the fictitious data when creating an electronic mailbox, it is not possible to establish ownership of electronic mailbox of specific citizen and, therefore, not possible to establish a violation of the constitutional rights of the citizen.
Conversely, in the case of indications of real data when creating e-mail box, in case of violation of the privacy of correspondence, the investigator is obliged to initiate a criminal case. Thus, the possibility of a free interpretation of malicious actions would be minimized.
I think that the adoption of the amendment is unlikely. In recent times, Congress reacted with hostility to such proposals. In addition, we must take into account stormy political climate. In such political climate, the controversial amendment would not be approved. In any case, I want to wish strength in this struggle for the rights and freedoms. I believe that if we stand together for this with corporations and IT companies we would have more chances to protect our rights.
Information Technology is currently developing very rapidly, and legislators sometimes just do not manage to take appropriate actions. But do not forget that number of Internet users is constantly growing. Every time US residents communicate via the Internet, their rights and freedoms are subject to real threats.
