Justice Dept. to Congress: Don’t Saddle 4th Amendment on Us
• By David Kravets
• April 7, 2011 |
• 4:06 pm |
http://www.wired.com/threatlevel/2011/04/fourth-amendment-email-2/
The Obama administration is urging Congress not to adopt legislation that would
impose constitutional safeguards on Americans’ e-mail stored in the cloud.
As the law stands now, the authorities may obtain cloud e-mail without a
warrant if it is older than 180 days, thanks to the Electronic Communications
Privacy Act adopted in 1986. At that time, e-mail left on a third-party server
for six months was considered to be abandoned, and thus enjoyed less privacy
protection. However, the law demands warrants for the authorities to seize
e-mail from a person’s hard drive.
A coalition of internet service providers and other groups, known as Digital
Due Process, has lobbied for an update to the law to treat both cloud- and
home-stored e-mail the same, and thus require a probable-cause warrant for
access. The Senate Judiciary Committee held a hearing on that topic Tuesday.
The companies — including Google, AOL and AT&T — maintain that the law should
be changed to reflect that consumers increasingly access their e-mail on
servers, instead of downloading it to their hard drives, as a matter of course.
But the Obama administration testified that imposing constitutional safeguards
on e-mail stored in the cloud would be an unnecessary burden on the government.
Probable-cause warrants would only get in the government’s way.
James A. Baker, associate deputy attorney general, testified:
Congress should recognize the collateral consequences to criminal law
enforcement and the national security of the United States if ECPA were to
provide only one means — a probable cause warrant — for compelling disclosure
of all stored content. For example, in order to obtain a search warrant for a
particular e-mail account, law enforcement has to establish probable cause to
believe that evidence will be found in that particular account. In some cases,
this link can be hard to establish. In one recent case, for example, law
enforcement officers knew that a child exploitation subject had used one
account to send and receive child pornography, and officers discovered that he
had another email account, but they lacked evidence about his use of the second
account.
Baker invoked the usual parade of horribles in his argument.
“The government’s ability to access, review, analyze and act promptly upon the
communications of criminals that we acquire lawfully, as well as data
pertaining to such communications, is vital to our mission to protect the
public from terrorists, spies, organized criminals, kidnappers and other
malicious actors,” (.pdf) Baker testified.
Don’t expect Congress to come out in favor of expanding Americans’ civil
liberties in the post–Sept. 11 world. CNET reported that Sen. Chuck Grassley
(R-Iowa) said demanding warrants would be a burden to law enforcement in
addition to “the court system.”
Congress has held countless hearings about reforming the Patriot Act, too. In
the end, however, lawmakers have repeatedly punted on that issue, and we
suspect they will embark on the same course when it comes to reforming EPCA.
The judiciary, however, has taken a different course. A federal appeals court
in December ruled that e-mails were protected by the warrant requirement.
That decision by the 6th U.S. Circuit Court of Appeals became law March 21. It
affects Kentucky, Michigan, Ohio and Tennessee.
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