This blog was originally posted on privacysos.org
Bipartisan legislation introduced
this week in congress by Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Texas), and
Suzan DelBene (D-Wash.) would require police and federal law enforcement to
obtain warrants before reading our emails or tracking our physical locations,
barring some exemptions. The bill would reform woefully obsolete
electronic communications privacy law in the United States, which was first
passed in 1986 – before the Internet as we know it existed, and before most
people had cell phones. Lofgren’s bill would even prevent law enforcement form
using controversial stingrays to track cell phones unless they got approval
from a judge, having showed probable cause.
The legislation is a huge step forward.
Under current federal statutes, law enforcement may
be able to obtain our private communications and documents stored in the cloud
with a simple subpoena. Subpoenas are simply pieces of paper prosecutors fill
out and issue to corporations or individuals, demanding information. No judge
approves them or in most cases even sees them. The standard for issuing
subpoenas is extremely low. Prosecutors must only believe that the information
they seek is relevant to an investigation – a tautology of sorts, given that
prosecutors investigate things for a living.
Obviously this federal framework for electronic
surveillance makes no sense in 2015. Even the Department
of Justice has agreed that a warrant requirement for email surveillance in
criminal investigations makes sense. Yet somehow, Congress hasn’t been able to
get this obvious and important reform over the finish line.
In the absence of federal legislation to close the
gaps, a patchwork of state and circuit court rulings and state statutes has
created an impossibly complex legal framework for electronic surveillance.
Today the rights you have against unconstitutional search and seizure very much
depend on where you live and what level of law enforcement agency may be
targeting you.
In Massachusetts, for example, our state high court
ruled in Commonwealth v. Augustine
that police must obtain probable-cause-backed warrants before demanding cell
site location information from cell phone companies to track someone’s
historical physical location. But that precedent only governs state and local
police in the state, not the feds.
If you live in the states covered by the 6th U.S.
Circuit Court of Appeals, your email is protected by a warrant requirement (except
in so-called “national security” investigations). That’s because the 6th
Circuit ruled in US
v Warshak that the government – feds or locals – must get a warrant
before seizing emails stored by a company like Google or Microsoft.
At the same time, some states have passed their own
statutes requiring law enforcement to obtain warrants to track our physical
locations or read our private communications. Most, however, have not. In all
of these cases, like with the Augustine ruling in Massachusetts, the
21st century warrant requirement only applies to state and local cops, not the
DEA, FBI, ATF, or other federal agencies. State legislators cannot create laws
to bar federal law enforcement from conducting warrantless searches.
This inconsistent development of electronic privacy
law makes it extremely difficult for ordinary people, and even privacy law
experts, to understand what the law requires in particular circumstances in
different states. The Online Communications and Geolocation Protection Act
would smooth out the bumps by modernizing privacy law in every state and
circuit with one fell swoop, providing a blanket warrant requirement for
tracking and monitoring.
Don’t get too excited, though: This bill, like
similar efforts aimed at bringing the 1986 Electronic Communications Privacy
Act into the 21st century, wouldn’t mess with the NSA’s unconstitutional
surveillance programs. Lofgren’s bill, Sen. Leahy’s Electronic Communications
Privacy Act Amendments Act of 2015, and a similar bill brought
by Reps. Jared Polis (D-Colo.) and Kevin Yoder (R-Ky.) provide loopholes
for what the federal government calls “foreign” intelligence surveillance. In
other words, NSA/FBI programs like PRISM
wouldn’t be affected if these important bills were signed into law.
Despite that shortcoming, these proposals are crucial
steps forward. While they won’t stop the NSA from reading your email, they will
stop local police, and in many cases even the FBI, from introducing evidence
against you if it was obtained without a warrant.
And there’s some hope that one of these bills might
even move this time around. “We really hope that this Congress is the one to do
it,” Polis said
of his proposal to modernize the warrant requirement for email content. “I
mean, introducing it with 223 [co-sponsors] is an amazing number. That’s huge.”
Get
Involved
It’s Time to Modernize Our Privacy Law
Let’s hope President Obama gets the message and moves
forward legislation that his own DOJ and over half of the House agree on. Obama’s
legacy isn’t looking so good when it comes to digital rights. If he were to
sign comprehensive electronic communications privacy reform it would be the
first expansion of criminal-investigations-related digital privacy rights from
Congress in nearly 30 years.
I’d say it’s about time.
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