The resignation of CIA Director David Petraeus has thrown a spotlight on the FBI’s sweeping power to sift through the most intimate details of our digital lives — often with little or no judicial supervision. On Thursday, the Senate Judiciary Committee will consider legislation that would modestly improve the outdated law governing police access to our emails and other electronic records — yet even this first step toward meaningful online privacy reform is encountering strong resistance.
Most Americans know that the Fourth Amendment protects us against “unreasonable searches and seizures” — requiring a judge to issue a specific warrant based on “probable cause” before government agents can search our homes, open our mail or wiretap our phones. Most probably assume that the same protection applies to their email conversations and other sensitive information stored in “the cloud,” such as documents, photos, chat logs and records of their Web browsing habits. Unfortunately, under the misnamed Electronic Communications Privacy Act of 1986, that’s not true.
Back when ECPA was written, “going online” meant dialing up services that charged astronomical per-minute access fees, and the digital storage capacity found on an ordinary smartphone would have cost roughly a million dollars. Naturally, it was assumed that email would almost always be downloaded to the user’s computer, where it would enjoy the traditional protections of the Fourth Amendment against physical search. So the law required a traditional warrant to access unopened email in “temporary” storage. But on the government’s interpretation, opened emails, other remotely stored files and unopened emails older than six months, are accessible with a court order based on a claim of mere “relevance” to an investigation, and sometimes even a mere subpoena. A few courts have required warrants for email contents, but sensitive logs that can reveal online reading habits, and even real-world movements, remain unprotected.
Unlike phone wiretaps, most forms of digital surveillance don’t have to be publicly reported, which means we have no clear idea how often these tools are used — but what we do know suggests they’re increasingly popular. In just the past six months, Google alone fielded 7,969 requests for user data from the U.S. government, covering 16,281 accounts — and that doesn’t include requests under secret intelligence authorities. Owing in part to the increasing popularity of location tracking using cell phones, mobile providers dealt with a staggering 1.3 million requests in the past year. In many instances, the targets never have to be informed they’ve been spied upon.
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