The Justice Department said Tuesday it supports rewriting 26-year-old legislation that has allowed law enforcement to read a person’s emails without a search warrant so long as the email is older than six months or already opened.
The law has long been criticized by privacy advocates as a loophole when it comes to protecting Americans from government snooping.
“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. She also said emails deserve the same legal protections whether they have been opened or not.
Tyrangiel’s testimony gives Congress a starting point as it begins to review a complicated 1986 law known as the Electronic Communications Privacy Act.
Written at a time before the Internet was popularized and before many Americans used Yahoo or Google servers to store their emails indefinitely, the law allows federal authorities to obtain a subpoena approved by a federal prosecutor — not a judge — to access electronic messages older than 180 days.
The Justice Department also has interpreted the law to mean that law enforcement with only a subpoena can review emails that have already been opened by the user, although that has been challenged by the courts.
To obtain more recent or unopened communications, a warrant from a judge is required. This is a higher standard that requires proof of probable cause that a crime is being committed.
So far, the law has been invaluable for investigators in child pornography cases and to develop probable cause to obtain warrants against suspected criminals, said Richard Littlehale, head of a high-tech investigative unit with the Tennessee Bureau of Investigation. He said the privacy problem has been overstated and law enforcement units have struggled to get access to data quickly enough.
“The truth is that no one has put forward any evidence of pervasive law enforcement abuse of ECPA provisions,” Littlehale told the House panel.
But privacy advocates and technology companies like Google, Twitter and Dropbox have complained that law enforcement has gone too far. Google says government demands for emails and other information held on its servers increased 136 percent since 2009.
“We recognize that local, state and law enforcement agencies have legitimate needs for data,” said Richard Salgado, Google’s director of law enforcement and information security. “We also recognize the need to ensure that disclosure laws, such as ECPA, properly honor the privacy that users of communications services reasonably expect.”
A George Washington University law professor, Orin Kerr, told the panel that any new law should limit what data is disclosed to law enforcement, even if a warrant were obtained. Currently, he said, a technology company will send the government the entire contents of a person’s email account.
“Investigators can scan through all the contents of a person’s digital life without limit,” Kerr said.