The Push to End Warrantless Intrusions on Digital Communications

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 It has long been outdated and it is past overdue to update the law to protect the privacy of United States citizens.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:

Image by Scruffy Dan and Breanne under Creative Commons license

The Push to End Warrantless Intrusions on Digital Communications

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]

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