(Washington, DC) The main existing law that limits the scope of law enforcement electronic snooping violates the Fourth Amendment to the Constitution when it comes to Internet communications, a top Google expert said here today. Speaking at the Congressional Internet Caucus' Annual State of the Internet Conference, Google's Director of Law Enforcement and Information Security Richard Salgado said that "our view is that the statute [the Electronic Communications Privacy Actor ECPA] is out of compliance with the Fourth Amendment because the government can call for the production of your data without a search warrant." The Fourth Amendment guards against unreasonable searches and seizures by the government.
ECPA, drafted in the 1980s when telephones were the primary mode of electronic communications, does not extend to email or other forms of Internet communication. Under ECPA, government authorities can and do request user information records with either commonplace, easy-to-issue subpoenas or with little more than written notices stating that the data are pertinent to an investigation. Telephone wiretaps, on the other hand, are usually subject to more stringent requirements for search warrants, which are issued by courts and judges and are based on the legal standard of probable cause.
The failure of the law to keep pace with Internet privacy issues is the main reason Google backs the Digital Due Process Coalition and publishes a bi-annual transparency report, which documents the government data requests received by the Internet giant. Although Google does not break down the kinds of law enforcement requests it receives -- warrants, subpoenas or just informal letters -- Salgado said that about 70% of the requests it receives are subpoenas. (Update: On 1/23, Google released its latest transparency report which documents for the first time the kinds of government requests it receives. Of the total requests received during the second half of 2012, 68% were subpoenas, 22% were search warrants and the remaining 10% were court orders or other or other processes that are difficult to categorize.)
"What we hear anecdotally is that the government asks [Internet companies] 'give us everything you can.' The vast majority of that email is not going to be relevant," Kevin Bankston, Senior Counsel, Center for Democracy and Technology said. "There is no minimization requirement when it comes to email."
The so-called scoping problem with Internet communications, namely that the government can request massive amounts of data without narrowing the scope of its requests, is likely the basis for the oft-reported allegation that Jill Kelley, a central figure in the Petraeus scandal, had exchanged 30,000 emails with General John Allen, the U.S. Commander in Afghanistan. The true number of emails is likely in the hundreds, according to Kelley, but it's possible that the FBI did indeed examine 30,000 of her emails in their hunt for relevant communiques.
How the FBI got access to the email accounts in the Petraeus scandal is unclear, according to Julian Sanchez, Research Fellow at the Cato Institute. "One site reported that the FBI used subpoenas. That's a little weird if true because the FBI does not have administrative subpoena authority," he said. [Clarification: Julian was speaking about the FBI's administrative subpoena authority in cyberstalking investigations.]
No good remedies to this problem are on the horizon either. To fix ECPA or enact new laws would require an act of Congress. But, "realistically I don't think anything has a legislative solution anymore," Mike Vatis, a long-time government cyber security and digital data protection expert, now a partner at Steptoe & Johnston, said. [Clarification: Michael Vatis says he was speaking about the prospect of a legislation solution to the question of minimizing the scope of law enforcement requests because minimization becomes too complicated to address in legislation, with courts ending up deciding the matter on a case-by-case basis. He later said that a legislative solution is possible through a simpler amendment to require a warrant to obtain the content of any communications].