Texas Becomes First State to Require a Warrant for Email Searches

If you naively believed your email is protected from unreasonable and unwarranted search and seizure by the government, you could perhaps be forgiven, since most people likely consider their email to be the kind of "papers and effects" that would be explicitly covered by Fourth Amendment protections.  But nothing is further from the truth.  Rather, law enforcement agencies are more likely to consider a person's email to be akin to a public, and publicly accessible record or document.  This is, in fact, the basis for many spying and snooping programs.  Texas has now become the first state to pass a law requiring a warrant for email searches.  Of course, citizens in Texas are still not safe from the Federal Government, which still considers everyone's email fair game.  The new Texas law should, of course, be unnecessary, since email and all other electronic documentation should be automatically considered part of an individual's "papers and effects", but we live under the rule of the Democratic and Republican parties, where one cannot take anything for granted, even the constitution.  From Ars Technica:

Texas Gov. Rick Perry has signed a bill giving Texans more privacy over their inboxes than anywhere else in the United States.  On Friday, Perry signed HB 2268, effective immediately. The law shields residents of the Lone Star State from snooping by state and local law enforcement without a warrant. The bill's e-mail amendment was written by Jonathan Stickland, a 29-year-old Republican who represents an area between Dallas and Ft. Worth.

Under the much-maligned 1986-era Electronic Communications Privacy Act (ECPA), federal law enforcement agencies are only required to get a warrant to access recent e-mails before they are opened by the recipient.  As we've noted many times before, there are no such provisions in federal law once the e-mail has been opened or if it has sat in an inbox, unopened, for 180 days. In March 2013, the Department of Justice (DOJ) acknowledged in a Congressional hearing that this distinction no longer makes sense and the DOJ would support revisions to ECPA.