Fed Agencies Fighting For Access To Our Emails Without Warrants


There is a bipartisan effort in Congress to modernize electronic privacy law and the White House claims to support the effort. So it’s odd that so many agencies in the Obama administration are fighting for exemptions. They think they should be able to access our emails without going through the hassle of obtaining warrants.

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In its cur­rent form, [Elec­tron­ic Com­mu­nic­a­tions Pri­vacy Act] ECPA pro­tects emails from gov­ern­ment snoop­ing for 180 days. When the law was ini­tially drawn up in 1986, email pro­viders routinely re­moved emails from their serv­ers a month or two after they were de­livered; users would gen­er­ally down­load the mes­sages they in­ten­ded to keep. Whatever re­mains on an email serv­er after 180 days is fair game for gov­ern­ment to ac­cess, with just a sub­poena—not a war­rant.

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Today, ubi­quit­ous cloud-based email sys­tems like Gmail, which of­fer giga­bytes of stor­age for free, al­low the av­er­age user to keep his or her mes­sages—and cal­en­dars, con­tacts, notes, and even loc­a­tion data—on a pro­vider’s serv­ers in­def­in­itely.

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The ECPA Amend­ments Act would re­quire law en­force­ment to get a war­rant to ac­cess serv­er-hos­ted in­form­a­tion, no mat­ter how old, and would re­quire the gov­ern­ment to no­ti­fy an in­di­vidu­al that his or her in­form­a­tion was ac­cessed with­in 10 days, with cer­tain ex­cep­tions.

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But law en­force­ment of­fi­cials ex­pressed op­pos­i­tion to some of the bill’s pro­posed changes, ar­guing that its re­quire­ment for crim­in­al war­rants could leave civil lit­ig­at­ors without ac­cess to im­port­ant elec­tron­ic in­form­a­tion.

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“The bill in its cur­rent form poses sig­ni­fic­ant risk to the Amer­ic­an pub­lic by im­ped­ing the abil­ity of the SEC and oth­er civil law en­force­ment agen­cies to in­vest­ig­ate and un­cov­er fin­an­cial fraud and oth­er un­law­ful con­duct,” said An­drew Ceres­ney, dir­ect­or of en­force­ment at the Se­cur­it­ies and Ex­change Com­mis­sion.

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Read the whole thing. Agencies fighting for an exemption to the proposed privacy protections include the FTC, the SEC and the Justice Department, among others. Even worse, as Veronique De Rugy explained in a recent article, if these agencies get their way US citizens could also be subject to privacy violations by foreign governments.

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During a criminal investigation into the actions of an Irish citizen who stored information on a cloud system with servers located in Ireland, DOJ asserted a right to access that information on the basis that the Irish company is a subsidiary of Microsoft, a U.S.

company. This power grab would not only subvert mutual legal assistance treaties, which govern law enforcement requests for access to information across borders, but also expose U.S. citizens to similar infringements by foreign governments.

The case is making its way through the courts, but the LEADS Act would immediately resolve the dispute and update ECPA in favor of greater privacy protections while also ensuring that mutual legal assistance treaties are capable of meeting modern law enforcement needs. (Read More)

De Rugy went on to report that a DOJ official testified that there is no basis to treat emails older than 180 days any different from more recent emails, but then he still argued that civil regulatory agencies should still get exemptions.