Friday, April 26, 2013

A Triumph of Privacy Over Unwarranted Police Prying

A Triumph of Privacy Over Unwarranted Police Prying:
My Gmail inbox has over 151,000 messages in it. I am an
electronic pack rat afraid that I might delete just the email I may
some day want to read or re-read. But there’s a drawback to my
correspondence collection: Many government agencies believe that
they can demand to peek, without my knowledge, at any of my emails
stored on Google’s servers before October 27, 2012. Archaic
provisions in the Electronic Communications Privacy Act of 1986
(ECPA) treat all emails still lingering on third-party servers
after 180 days as “abandoned” property available for the police to
snoop more or less at will.
On Thursday, the Senate Judiciary Committee
to send the ECPA
Amendment Act
, introduced by Committee Chair Patrick Leahy
(D-Vt.), on for consideration by the full Senate. The new law, if
adopted by Congress, would finally extend Fourth Amendment
protections against unreasonable search and seizure to all emails
and other electronic documents stored on third-party electronic
devices. Earlier this week, a
from a broad coalition of activist organizations, think
tanks, and businesses—including Americans for Tax Reform, the
American Civil Liberties Union, Amazon, Google, Facebook, and
Yahoo—urged that the ECPA Amendments Act be voted out of
Back before the Internet, when mastodons and saber-toothed
tigers roamed the landscape, people often communicated by sending
actual physical pieces of paper (called “mail”) via the United
States Postal Service. But by 1986, perhaps 0.5 percent of
Americans had used a newfangled technology to send one another
electronic messages (later called “e-mail”)
via computers attached to telephone lines. The courts had
established clear Fourth Amendment limits on police prying into
private letters and documents and on listening in on private
telephone conversations, and civil libertarians were anxious to
extend similar protection to the new electronic communications. And
so Congress enacted ECPA, which extended to electronic messages
many of the restrictions placed on old-fashioned telephone wire
taps, including the requirement for a warrant to intercept messages
in real-time.
So far, so good. But in trying to set limits on snooping,
Congress analogized email to old-fashioned mail. The postal service
had only temporary custody of private letters, since recipients
were expected to pick up their mail at the post office or from
their mailboxes. With early e-mail services, similarly, users would
download messages to their own computers and then service providers
would erase them from their servers. (AOL once limited me to a
mailbox that could hold just 150 messages.) Now, it is
long-established principle
that the police must obtain a search
warrant based on probable cause before opening and inspecting
letters in a desk drawer at your home. On the other hand, if you
throw a letter into the trash and set your garbage bags out on the
curb, the Supreme Court has more recently ruled that you
no longer have a reasonable expectation of privacy
with regard
to that letter. At that point you’ve essentially abandoned your
property, so anyone, cops included, may look at it.
In an insightful 2008 Boston University Law Review
the attorney Achal Oza examines the testimony from ECPA’s
congressional hearings. He concludes that “the drafters of the ECPA
believed an e-mail service provider only stored e-mails temporarily
on their servers, and therefore, if an e-mail user were to leave an
e-mail communication on such a server for over six months, the user
had abandoned it to the service provider.” There’s another odd
feature of the law—the fact an email doesn’t qualify for Fourth
Amendment protection if a subscriber opens it and leaves it on the
email service’s server. The strained analogy here is that just as
police may legally read a letter left open on a desk, so too can
they read an opened email.
Oza illustrates ECPA’s inconsistencies by imagining three
people—Alice, Bob, and Charlie—each receiving emails from Tommy
Trafficker. The police suspect that Tommy has sent messages
relevant to the sale of illegal drugs. Alice, Bob, and Tommy all
use Microsoft Outlook to access their university email accounts,
while Charlie uses Gmail. Alice, using the post office protocol
feature on Outlook, downloads her messages to her personal
computer, whereas Bob instead reads his email using Outlook’s
Internet message access protocol feature, which means his messages
are stored on the university’s servers. And Charlie’s mail is
stored on Google’s servers as part of the company’s Web-based email
Under the ECPA, if the police want to read Tommy’s email to
Alice, they must observe the search and seizure protections of the
Fourth Amendment and obtain a search warrant based on probable
cause to do so. On the other hand, the cops can compel the
university and Google to disclose Tommy’s emails to Bob and Charlie
by serving them with administrative subpoenas. To issue such
subpoenas, the police must merely have “specific and articulable
facts showing that there are reasonable grounds to believe” the
messages are relevant to a criminal investigation.
Is this constitutional? The courts haven’t arrived at a
consistent answer. In
Warshak v. United States
, Steven Warshak, the owner of
an Ohio nutraceutical company, was investigated for fraud. The
district attorney served a subpoena on his internet service
provider (ISP) demanding access to all of his emails that more than
180 days old and forbidding the ISP to disclose that they had been
handed over to the feds. In 2007, the U.S. Court of Appeals for the
Sixth Circuit ruled that this was not permissible, explaining that
“individuals maintain a reasonable expectation of privacy in
e-mails that are stored with, or sent or received through, a
commercial ISP.” After several courts adopted the reasoning in the
Sixth Circuit’s decision, the Justice Department appealed it to the
full Circuit Court, which then
overturned its original decision
on the grounds that “Warshak's
constitutional claim is not ripe for judicial resolution.” This
judicial confusion left ECPA’s constitutionality up in the air.
Hence Sen. Leahy’s ECPA Amendment Act. Its success thus far is a
rare instance of privacy interests trumping the police’s ambition
to pry into citizens’ affairs. Here’s hoping both houses of
Congress pass it as quickly as possible.