In a column recently published by POLITICO, Americans for Tax Reform’s Grover Norquist and American Civil Liberties Union’s Laura Murphy write, “In the age of the Internet, your privacy is not Fourth Amendment safe. Government agents cannot tap your phone without a warrant issued by a judge based on some indication you are involved in wrongdoing, but the government claims the authority to read your emails without a warrant. The government can’t open your postal mail or seize papers from your home without a warrant, but it says it can read any private and sensitive documents you’ve stored in the Internet ‘cloud.’”
The law government used to justify all this activity is the Electronic Communications Privacy Act (ECPA) written in 1986. It has long been outdated and it is past overdue to update the law to protect the privacy of United States citizens.
Norquist & Murphy declare, “All private communications and documents stored online with service providers should have the same protections from unreasonable search and seizure as material locally stored. If government agencies want to read emails, they should go to court, show probable cause to believe a crime is being committed and obtain a search warrant just as they would for postal mail and telephone calls.”
Senator Patrick Leahy, a Democrat from Vermont, and Senator Mike Lee, a Republican from Utah, introduced a bill to reform the ECPA. Except for emergency situations, it would require a warrant in order to request communications from Internet service providers or online services. It would eliminate a 180-day rule for communications that currently requires law enforcement to get a warrant only if an email is less than 180 days old.
The House Judiciary Committee held a hearing on the ECPA and “lawful access to stored content” yesterday. Murphy did not appear before the committee as a witness,but, for the ACLU, she did submit a statement. It called for an update to the ECPA that renews warrant and probable cause requirements for law enforcement seeking the communications of citizens for investigations.
Murphy also argued:
When the original Electronic Communications Privacy Act was passed in 1986, the Web had not yet been invented and cell phones were large clunky objects that few people owned. Since then, technological advancements have transformed the way Americans communicate. Electronic forms of communication are used for virtually every type of private exchange, from sharing personal advice and sending love letters to discussing medical ailments and conveying confidential business information.
Evidence shows that as the majority of Americans have begun to replace older forms of communication like postal mail and landline telephones with electronic communications, they have tried to bring many of their old privacy practices with them. Email accounts have passwords to make sure no one can read messages without authorization, just as envelopes are sealed to give letters the same protection. It is considered highly invasive for one person to read through another’s text messages without permission, and many cell phones have the ability to be locked with a code to prevent just that. American cell phone users are worried about privacy: more than half of mobile app users have uninstalled or avoided a cell phone app due to privacy concerns. But despite these clear expectations, ECPA arguably authorizes the government to access many of these private, password-protected communications without obtaining a probable cause warrant, something that would certainly be needed to access the very same messages if they had been sent through an older medium like a written letter or a landline telephone.
The Justice Department sent Elana Tyrangiel, Acting Assistant Attorney General of the Office of Legal Policy, to testify. In her statement submitted to the committee, she makes the following authoritarian argument:
…[C]ivil regulators and litigators do extremely important work. But they typically are investigating conduct that, while unlawful, is not a crime. Criminal search warrants are only available if an investigator can show probable cause that a crime has occurred. Lacking warrant authority, civil investigators enforcing civil rights, environmental, antitrust, and a host of other laws would be left unable to obtain stored contents of communications from providers. As increasing amounts of information are stored electronically, the amount of information that would be unobtainable to government regulators and litigators will only increase. It is also not the case that these civil regulators and litigators can ask criminal law enforcement officers to obtain a warrant on their behalf. For them to do so would be inappropriate because it would require the opening of a criminal investigation—a step that would be impermissible unless the underlying conduct appeared to be criminal in nature…[emphasis added]
If conduct is unlawful, does not that make it a crime? In a search that could unpack this legal concept, it would seem this is how law enforcement, intelligence agents or military officers approach “enemy combatants.” In warfare, they are not committing crimes but are enemies so they are detained as “unlawful combatants” (or these days targeted and killed by drones). So, what Tyrangiel argues is a perversion of due process in favor of the national security state.
Why should government have the ability or authority under any law to investigate a person if they do not suspect of them a crime but merely wonder if they snoop around in their communications if they will find some information that might just so happen to show that person committed a crime? Without knowing what is being sought after in the communications, it is a fishing expedition that allows government the ability to not only uncover data on the individual being targeted but also the other people individuals, which have sent and received emails from the targeted person.
Richard Littlehale, assistant Special Agent of the Tennessee Bureau of Investigation, submitted a statement as well and he concludes in his statement, after arguing that the ECPA be reformed to give agents and police broader authority to collect data from citizens’ communications:
…Just as there is no question that people have an interest in preserving the privacy of that information, there can be no question that some of that information holds the keys to finding an abducted child, apprehending a dangerous fugitive, or preventing a terrorist attack. Whenever we move forward with the privacy/safety debate, we should be mindful that any restriction of law enforcement’s access to that information, whether by redefining legal barriers or allowing service providers to erect new technological barriers, may well come at a price, and some of that price could be paid by our most vulnerable citizens. We should be sure we are willing to require them to pay it… [emphasis added]
Imposing a warrant or probable cause requirement is not a “technological barrier.” This is but another example of fearmongering by those in law enforcement and national security claiming too much privacy protection will increase the likelihood of some citizens being attacked by terrorists or in this case, murdered or raped by someone who is a serial criminal. But, again, if law enforcement does not have evidence of a crime than they are either profiling a person or engaging in domestic spying.
It should not be perceived as difficult to go to a judge and get a warrant for access to communications. A judge is not going to rebuff law enforcement if it looks like there is truly a criminal to be arrested or stopped. One says to a judge there is reason to believe that a person has (or persons have) committed a crime or is (are) in the process of committing a crime. They present some or all of what evidence they have so far and outline what they believe getting up on the target’s communications will accomplish and then a team goes to work.
Norquist and Murphy note in their column:
We do not intend our reforms in any way to impede investigations of terrorism or serious crimes such as child pornography. We leave in place laws regarding child pornography. We preserve emergency exceptions for cases posing immediate threat of harm. We do not touch authorities for national security investigations and international terrorism. Our reforms focus on ordinary investigations, and all we are saying is that the warrant standard established by the Constitution for privacy in the physical world should also protect privacy in the digital world.
That there needs to be debate over having a warrant standard shows how much law enforcement has claimed the power to violate privacy in the name of fighting crime.
What people want is privacy law which makes it impermissible and unlawful to engage in surveillance that chills a citizen’s right to associate with individuals or engage in political activities, etc. They want COINTELPRO measures to be clearly out of bounds, regardless of whether law enforcement agents may still engage in such conduct outside the law. They do not want to live in a world where they are under total surveillance, and, if they are, they want to be able to challenge government when their due process rights are being violated.