SurveillanceJustice Department agrees 1986 snooping law should be reviewed

The U.S. Justice Department said earlier this week that it supports reviewing legislation which allows U.S. law enforcement officials to read someone’s e-mails without a search warrant.

The 1986 Electronic Communications Privacy Act (ECPA) states that federal authorities only need a subpoena issued by a federal prosecutor, not a judge, to search through a person’s e-mails which are older than 180 days or which have already been opened. The Guardian reports that in order to see e-mails that have not been opened or are less than 180 days old, federal authorities need a warrant to be signed off by a judge.

The law has been criticized in the past by privacy advocates who argue it allows the government to snoop into people’s personal information.

“There is no principled basis to treat email less than 180 days old differently than email more than 180 days old,” Elana Tyrangiel, acting assistant attorney general in the Office of Legal Policy, told a House judiciary subcommittee. Tyrangiel also told the subcommittee that e-mails deserve the same legal protections no matter when they are received or opened.

The law was written in the old days of the Iinternet, when dial-up was considered high tech, and before Yahoo or Google servers were used to store citizen’s e-mails.

The law has helped investigators put criminals away, especially when it came to child pornography cases. Richard Littlehale, the head of a high-tech investigative unit with the Tennessee Bureau of Investigation, said the law has also helped to develop probable cause to obtain a search warrant. 

According to Littlehale, the privacy problem is being blown out of proportion, and law enforcement agencies cannot get access to data as easily as the public and privacy advocates may think.

“The truth is that no one has put forward any evidence of pervasive law enforcement abuse of ECPA provisions,” Littlehale told the House panel.

Technology companies believe that the government is taking advantage of the law. Google, Twitter, and other Web companies say government demands for e-mail and other personal information  held on their servers have increased 136 percent in the last four years.

“We recognize that local, state and law enforcement agencies have legitimate needs for data,” Richard Salgado, Google’s director of law enforcement and information security told the Guardian. “We also recognize the need to ensure that disclosure laws, such as ECPA, properly honor the privacy that users of communications services reasonably expect.”

Orin Kerr, a professor at George Washington University, told the House panel that if a new law is drafted, it should limit what data are disclosed to law enforcement, even in the event that a warrant has been obtained.