Should Law Enforcement Be Required To Obtain Warrants When Snooping Through Email?

    November 24, 2012
    Zach Walton
    Comments are off for this post.

Senator Patrick Leahy was one of the good guys back in September. He was proposing a rewrite to the 26-year-old Electronic Communications Privacy Act that would require the feds to obtain a warrant to read your email. The Justice Department didn’t like that requirement and complained. It looks like it worked as the bill is just a shadow of its former self.

CNET’s Declan McCullagh reports that Leahy has rewritten his rewrite of the ECPA that would allow law enforcement to obtain full access to your Internet accounts without a warrant. All they would need is a simple subpoena and they could access everything about your digital life with you being none the wiser.

Should law enforcement be allowed to access your private email with just a subpoena? Let us know in the comments.

So, what would the bill let authorities do exactly? CNET has a great breakdown of all the new powers:

  • Grants warrantless access to Americans’ electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.
  • Permits state and local law enforcement to warrantlessly access Americans’ correspondence stored on systems not offered “to the public,” including university networks.
  • Authorizes any law enforcement agency to access accounts without a warrant — or subsequent court review — if they claim “emergency” situations exist.
  • Says providers “shall notify” law enforcement in advance of any plans to tell their customers that they’ve been the target of a warrant, order, or subpoena.
  • Delays notification of customers whose accounts have been accessed from 3 days to “10 business days.” This notification can be postponed by up to 360 days.
  • The above is already bad enough, but which departments would be able to access your information without a warrant? It’s not just the traditional authorities as the bill states that the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, the National Labor Relations Board, and the Mine Enforcement Safety and Health Review Commission would have nothing stopping them from gaining access to your personal information.

    Would you be okay with multiple federal agencies having access to your private communications? Let us know in the comments.

    As expected, the proposed bill has already generated a lot of controversy once CNET broke the story. What’s interesting, however, is that Leahy is now claiming that the proposed rewrite was just one draft among many. Leahy’s spokesperson David Carle told Forbes writer Kashmir Hill that the CNET report was wrong, and a Senate Judiciary aide sent the following statement to the publication:

    “Senator Leahy does not support broad carve outs for warrantless searches of email content. “He remains committed to upholding privacy laws and updating the outdated Electronic Privacy Communications Act.”

    McCullagh took to Twitter to defend his work, and said that Senate Judiciary aides were telling him on Tuesday that Leahy’s privacy infringing rewrite of ECPA was the one being considered for a vote next week. He attributes Leahy’s change in tune to the already sizable public outcry that has emerged following the piece.

    At this point, it’s hard to tell exactly how different ECPA will look from the original incarnation. Leahy could very well introduce a bill similar to his original rewrite that would make law enforcement seek warrants to obtain access to your email. He could introduce a bill that would seriously infringe upon America citizens’ privacy. It’s too early to tell right now, and the mixed signals being sent by Leahy aren’t helping.

    Leahy’s proposed rewrite will be hitting the Senate next week, but California Rep. Zoe Lofgren is looking to introduce her own ECPA rewrite to the House. It’s called the ECPA 2.0 Act of 2012, and it looks to be a massive overhaul of the ECPA that takes privacy more seriously than Leahy’s original rewrite did. Here’s the main components of Lofgren’s bill:

  • The government should obtain a warrant before compelling a service provider to disclose an
    individual’s private online communications.
  • The government should obtain a warrant before it can track the location of an individual’s
    wireless communication device.
  • Before it can install a pen register or trap and trace device to capture real time transactional
    data about when and with whom an individual communicates using digital services (such as
    email or mobile phone calls), the government should demonstrate to a court that such data is
    relevant to a criminal investigation.
  • The government should not use an administrative subpoena to compel service providers to
    disclose transactional data about multiple unidentified users of digital services (such as a bulk
    request for the names and addresses of everyone that visited a particular website during a
    specified time frame). The government may compel this information through a warrant or court order, but subpoenas should specify the individuals about whom the government seeks information.
  • Not only does Lofgren’s bill require law enforcement to obtain warrants, but it outright prohibits the use of subpoenas to gain access to the account information of multiple users. It protects the privacy of individuals, but it also keeps law enforcement and government accountable for its actions. The rumored rewrite of Leahy’s bill that would only require a subpoena removes all accountability from law enforcement, and would only encourage agencies to act with reckless abandon.

    It’s sad to say, but Lofgren’s bill will probably never see the light of day. The Justice Department and other law enforcement agencies came out in full strength against Leahy’s original rewrite of the ECPA. They claim that requiring warrants would only hurt their ability to catch the bad men doing unspecified bad things.

    The law enforcement lobbying groups will keep any significant reform to privacy bills buried until both sides can come to some kind of compromise. It’s important that law enforcement is able to do their job without any kind of unnecessary impediments, but the privacy of American citizens does not need to be compromised in the process.

    The warrant has worked for over 200 years, and I have no reason to doubt its effectiveness in the digital age. Law enforcement agencies obviously don’t agree which will require some creative thinking on the part of law enforcement, lawmakers and regular citizens (maybe even Reddit) to create a bill that satisfies the needs of all parties in this age of digital communications.

    Do you think the warrant is effective in the digital age? Or do you think law enforcement should have new powers on the Internet? Let us know in the comments.

    • Lois Klein

      We had privacy before?
      I don’t think that’s been the case since the Internet arrived on the scene!

    • A. Weiner

      Hell NO, to Leahy! He is selling the people out to the slave keepers by ripping apart the very fabric of what it is to be an American… FREE!

      Thank goodness there are still some folks in government who still believe in the fundamentals of freedom.

      If Mr. Leahy and all the slave keeping government agencies want to track and read something, let them track and read this… –i-/ !

    • James Easton

      The idea is unconstitutional and illegal. The intent of email is the same as written correspondence. To tamper with mail, or read another’s mail in written form is a felony, mail fraud is a high crime. The law would be removed upon one legal challenge to the Supreme Court. In all cases probable cause and a warrant are required. This new law violates the 1st amendment and countless other prior laws. It is a waste of our law makers time and energy. Innocent until proven guilty in a court of law is a powerful concept, these enforcement agencies should confront their own notions of law enforcement, two wrongs do not make a right. How can any of them be respected as authority when they themselves are willing to violate basic ideas of human rights to exercise control in their own interests. Is that not the base morality violated by those who choose to be criminals? If a law does not hold up to the golden rule it should not be a law. Would these men want their own written letters read and censored? Of course not. We now live in a world where the cops have become criminals by their own efforts to protect and serve. Our elected officials should be much wiser than they are.

      • http://newhollandohio.com Gary

        Very Articulate and Accurate…Couldn’t have said it better myself!

    • Neal

      I feel that it should be a requirement for any enity to obtain a warrant to see someone’s digital identity it is an envasion of privacy otherwise. Website owners cannot even see someone’s posts such as facebook because it violates privacy laws what gives law enforcement the right without proper warrants it’s like them reading your mail without a warrant that is illeagal.

    • Sara

      Absolutely not, this country has enough secret activity going on as it is. This would be the ultimate invasion of privacy.

    • Robert Cerveny, Jr.

      The Constitution was written for a purpose. I could care less if the Justice dept doesnt like certain thinks. They need to abide by the Constitution like everyone else, they are not better than anyone else !!!!!!

    • Wade Lucas

      Any branch of the government that perverts the Constitution should be abolished, including so called law enforcers.

      • Michael

        Does this include circumlocution of Article I, Section 10, Clause 1, of the U.S. Constitution?

    • J

      NO. email is a private communication just as writing a letter and using a postage stamp, unless it is a posted to the general public.
      To search email at will is like searching a persons home. Same safeguards should apply. Are we becoming a military state? 1984 is here.

    • http://dnnlombardo.weebly.com/ Donna Lombardo

      There are so many scammers and crooks online now days. Some steal your credit card information and others con you into buying some bogus items or software. I believe a warrant would alert the crooks to look legit. If a warrant is issued, a criminal may have time to clean up their criminal acts before investigation can take place. If someone is not doing anything wrong online in e-mails or otherwise, why would it bother them to be watched? I have nothing to hide. Do you?

      • Michael

        People such as yourself are the reason why they continue to get away with Constitutional violations. Whether you have something to hide or not is extraneous. The Constitution provides us great protections for a reason.

    • Gadabout

      Yes! Once you set a new normal the government will vary to another questionable practice until challenged. Next it will be letters; why not they already are reading your mail so what’s the difference? Oh now they would need to enter your home, but they are electronically entering your home already so what the difference? Once you give up the “rights” you have you will never get them back. Remember folks it’s not the “Bill of Privileges”. You give them up for some temporary security and . . . wait a minute didn’t Franklin say something like that? You’ve got to love old Ben, human nature does NOT change, only the technology changes.

    • Jon Heil

      Government people think they are above the law. I dealt with some that act like stalkers or fish enough. They need to be dealt with.. karma will get them. Sad some of them get a hard on about lying to others and acting like someone else… they don’t have enough other jobs to do then rape people of taypayer money…

    • http://www.Daveylee.net David Perkins

      You have to have a warrant to enter my house without permission. Why should it be any different to read my private communications… or did they suddenly become “open source” that are open to all comers?

      Using encrypted email seems to be the ‘new normal’ for those of us who DO NOT want our lives open to all comers.

      I know that won’t stop the FEDS from reading my email if they’re determined but it WILL slow ’em down!

      • Michael

        Not accurate. There are several ways to gain access to your residence without your knowledge, including Delayed-notice search warrants and Exigent Circumstances to name two. However, I do agree that law enforcement has been given extraordinary powers since 9/11, including reading our emails, listening in on phone calls and groping kids in airports.

    • Rob G

      Yes. And on a sidenote a car is an extension of ones house so should also require a warrent before being searched/harrassed/pulled over.

      But for servers I think no warrent should be required.

    • bill anderson

      This is a police state. people have decided to be “safe” rather “free”
      If I gave a crap about staying in the US, I would secession for my home state, North Carolina. I am planing to leave.

    • Christopher

      What do you expect from Obama and the rest of the communist and socialist

    • http://greg.patnude.com Greg Patnude

      Absolutely not. If I am the subject of any kind of investigation, I expect that there be a full set of legal warrants and disclosure. I do not want my government in my business without my knowledge. There is no reason the government needs this kind of power over its citizens…

    • Faye Shamblin

      No one should be allowed to interfere with what is said or in our emails without the proper precedure. This is linked to Obama the rat that wants to dictate what we can say or do and the louse needs someone to tell him what to do and how by impeachment trial for fraud and treason he is no good for America he’s a tramp in my book liar thief and murderer ( 4 American dead in Libya) at his fault and I hope he serves time or maybe put to sea with no return

    • http://www.captaincyberzone.com Cap’n Cyberzone

      They need a warrant. Don’t give-up anymore freedom.
      Anything that Eric Holder’s Justice Dept. is for I’m against. Look-up Holder’s record: Ruby Ridge, Waco, Elian Gonzales, Fast & Furious, New Black Panthers, Benghazi (gun running) and more.

    • http://justsayingmypiece.com Charlie

      Well, in my (humble) opinion, “YES”…law enforcement should be required to obtain warrants for snooping into e-mails; but, I doubt anyone is going to make them get them any time soon, y’know? I’m just sayin’…”Big Brother” is everywhere~!

    • http://Mabuzi.com Kevin

      Yes they need a warrant to look at anything that’s mine. Sadly our rights have been gradually eroded in recent years under the guise of homeland security. I think we need protection from the Government itself.

      Service providers as private companies already read your email with your consent but without your knowledge. See small print.

      In Australia there was talk of storing all your on-line and e-mail for 2 years but was scuppered when the politicians realized there data would be kept too and would be open to scrutiny. Funny that.

    • http://2001ce.com J Rolin Stone

      Fascism works best when they can implement their agenda over time, over generations so that people forget they used to be more free. Until we are no longer free in the sense of “liberty” that is the definition of participatory democracy. That is their goal, and it is succeeding. In large part because of the style of Fascism: “corporate”. Capitalism too is an agenda that is being developed over time as the most oft used vehicle for curbing our freedoms. Such as these snoop laws. THEY use capitalism to incite our competitive natures and our personal greed so that when given the choice between a “freer” market and our personal liberty, when in conflict (most of the time), we too often choose the markets. “Puny humans”…

    • Sammy G

      Look at what happened to pyramid civilizations? the more power is concentrated, more easily it will fail.

      Inter human communications do not need any network look into ancient Buddhist texts……

    • Angel Hull

      “When the people fear the government there’s tyranny. When the government fears the people, there’s liberty.” Absolutely, law enforcement SHOULD obtain a warrant to view personal information even if it’s digital.

    • http://www.cuttingedge-atalkshow.com Ron & Anna Winship

      *Probable Cause, Plausible Deniability, Persons of Interest, Freedom of Association and a variety of other issues which concern so-called Terror Activities and whether or not someone is fundamentally tied to any given endeavor……are all complex issues. The Electronic Frontier Foundation is a good one to ask this question.

      Based on the plethora of devices that are availble to communicate with and on a variety of Social Media…..we can only say: Our current right to privacy is probably restricted to Snail Mail, Fed Ex and other communications delivered by Courier Services. Those should probably be protected. Anything on electronic media should be considered….”Open Source” to any credible Law Enforcement Agency. Inappropriate release of that info…..should allow civil and criminal prosecution…no matter who released them.

    • Eric

      They do not have the right to search through someone’s email without a warrant, and many times the only way law enforcement gets away with seizing something without using a warrant is if it is out in plain view site or if they have the owner’s permission to search the area in which they are asking about. This is not only a violation on people’s privacy, but it is a violation to their civil and constitutional rights to the right of unfair search and seizure from the government. This is why there are passwords on email accounts and so forth so that people have their privacy, and have some sence of security. This is just another ploy on their part to be able to stick their noses where it does not belong in other people’s lives.

    • Thomas McWhorter

      its called mail or e-mail and if this is allowed to happen with out a warrent next will come your freedom of speech because they wont need a warrent to read what you say

    • http://www.absolutewebworks.com/ Jesse

      I’m in favor protecting citizens rights. This includes our right to privacy. Our government is powerful enough.

    • Practical Grandma

      Why is this even a question? Of course they need a warrant. No compromise is acceptable…ever.

    • http://normascorner.com Charlie

      They need a search warrant to go through your mail in your home and car . The same also pertains to the internet. It is your account not the publics.

    • http://cass-hacks.com Craig

      A ‘shadow of its former self’?

      It is more like a complete reversal. The original saying law enforcement, or anyone else, would need a court order to access private communications, and now, the complete opposite, virtually anyone that wants to being able to access private communications for little or no reason without the person to whom the communication belongs being made aware of it.

    • http://www.cartridgesave.co.uk Alex Morris

      In England we’ve just had a law stated where what you write on Twitter can get you time in prison (usually for racist slurs, but also for slander etc.) and there have been a number of instances where evidence has been used from Facebook by law enforcement. I’m not really up on laws in America so I won’t wade in here and comment, but freedom of speech is always an issue, along with national secturity.

    • http://wineasagift.net Jon K. K. Priestley

      NO! This is a just another ploy by “law enforcement” to circumvent the “Constitution of the United States” because it cannot be done any other way. If they cared so much about “safety” there would not be as much
      “crap” going on as there is.

    • Confused

      Why should we change the laws just because it’s digital. There are so many scary issues here. One that comes to mind is planting false evidence to get a conviction. Law enforcement has demonstrated many times in the past their subjective treatment of official procedures. Even though most would operate in a professional manner, the temptation would be there to go outside the law for personal gain, especially in politics, and then only the crooks would win elections.
      I would think that law enforcement would see this accountability as a protection for themselves against any technicalities in court and elsewhere. I believe there should be one exception (and I think there already is). Law enforcement should be allowed to act immediately in the case of life or death emergencies. They could could set up a database, that could only be read and reviewed by judges later on. Also, any intrusion into personal digital data should only be allowed to focus on the current investigation. Just think if law enforcement could insert people’s sex perversions as evidence (yes you do – don’t lie). They could use personal fantasies as circumstantial evidence, and get convictions based on subjective virtual reality. (Dude! Lose the self-righteous denial. You know you’ve been on those sites.)

    • Chuck

      I definitely think that law enforcement so get a warrant before reading anyones email.The Goverment has to much control over our lives now.

    • Steve

      No, too much information would be potentially given to government officials who are increasingly picking winners and loosers in the business world, endangering the incentive to trust or even use such systems in the first place?

      The accuracy of information contained in email systems is as reliable as any other communication on the internet, which is manipulated to achieve end results?

      Not only is this a violation of your civil rights (reasonable doubt that we are all criminals), the potential costs of having government employees with rock star benefit packages wasting time digging through emails with as much success as digging through a haystack to find a needle is something that raises your taxes so that you can’t spend quality time with your family, because you live on a 5% discretionary budget income to pay for vacations, gifts, or helping your nieces and nephews?

      Do you honestly think criminals are going to leave an evidence trail in their emails? Maybe on television shows, but in real life, no?

    • Samba

      This is a good sign, the Banksters are getting scared and they should be…… becuase fake fiat currency system will be abolished and replaced with energy based currency system.

    • Rick

      People have an expectation of privacy in their email–after all, it’s password protected, filtered for spam, etc. They should have the same expectations for email as they do for snail mail, delivered in envelopes by a government agency. You have to have a warrant to screen snail mail. The false argument is the government should have access because it is easy. They don’t have to open envelopes. Invasion of privacy shouldn’t be allowed just because we can. It should be only when we have to and when we can prove we have to.

    • http://transfer-switch.webs.com Mohann

      I agree the authorized agencies must and should have a warrant to invade our privacy. In this age of rampant misuse of the internet by criminals and the evil-minded, there has to be a check by Big Brother.

    • john burgess

      oh yes lets make another law to help the dishonesty grow even faster in the good ole usa

    • PJ

      Email is another form of communication and just like telephone, cellphone, etc. a warrant to intercept should be required.

      This another attempt by the “law enforcers” to be slackers and have an easy way to snoop on everyone. They tried this before when they tried to get every computer manufacturer to build a backdoor into each system. When a snoop was desired the law enforcers has to request the access key from the key holder … oh the key holder was the Justice dept.

      Twitter and public Facebook is a little different because you are dumb enough to put it out for public consumption so it becomes evidence.

    • Tag A. Long

      We should all be comfortable in giving petty bureaucrats access to all of our communications. Seriously, what could possibly go wrong?

    • Barbara

      I will no longer feel comfortable e-mailing anyone ever again on the internet for I have no privacy anymore. America has become a dictatorship and we have no freedoms here anymore.