Privacy bill amendments will provide clearer guidance to investigators

On August 21, 1789, the House of Representatives adopted amendments to the U.S. Constitution, which later became known as the Bill of Rights. The fourth of these amendments was introduced to protect private citizens from unlawful search and seizure by government agents. Last Thursday, members of Congress once again sought to protect the citizens they represent from unreasonable searches by agents of the government.

The Senate Judiciary Committee, led by Senator Leahy, voted in favor of amending an act that protects the privacy of every citizen. The Electronic Communications Privacy Act of 1986 protects electronic communications, like email, from being accessed by law enforcement without a warrant issued by a judge. Federal agents have however pushed the envelope when it comes to accessing email and other communications without a warrant. They have interpreted the law to mean that email, which is 180 days old, does not require a warrant. Furthermore, it appears that the Department of Justice views opened email, which could include draft messages, as accessible with just a subpoena; in contrast to a warrant, to obtain a subpoena, a government agent does not need to show probable cause and it does not need to be issued by a judge. Courts have not always upheld the viewpoint of government agents regarding electronic communications, including the Ninth Circuit Court of Appeals. Interestingly, the DOJ Manual states that government agents can obtain email without a warrant outside of the jurisdiction of the Ninth Circuit Court. The FBI’s recent unfettered access to personal emails of CIA Director, David Petraeus, highlights the government’s understanding of ECPA.

The lack of clarity in legislation relating to electronic surveillance is more apparent than ever before. Earlier this year the U.S. Supreme Court overturned the conviction of a drug dealer, Antoine Jones, after federal agents installed a GPS tracking device after their warrant had expired. Cellphone evidence was recently thrown out by a Rhode Island judge after ruling that investigators should have had a warrant before examining a device belonging to a murder suspect.

One might suggest that amendments to ECPA and other privacy protection legislation will negatively impact law enforcement but this is clearly not the case. In fact, these amendments will provide clearer guidance to investigators and remove any grey area. Many defense attorneys have been successful in arguing that government agents should have had a warrant before accessing an individual’s electronic communications. Senator Leahy proposed revising Section 203 of the bill to extend the timeframe for when the government must inform an individual that electronic communications were received from a third-party from three business days to ten business days. It has also been proposed that the timeframe from when an individual is notified that the content of electronic communications has been obtained by the government is extended from 90 days to 180 days. The proposed change to Section 204 will provide law enforcement with much greater time to complete its investigation before having to return to court to request a delay. It has been proposed that Section 204(b) be amended to extend the timeframe from 90 days to 180 days for which the government can request that a third-party not notify a person of the existence of a warrant or subpoena.

Senator Leahy has already reassured Congress that his proposed ECPA will in no way alter federal anti-terrorism or criminal laws. Moreover, the USA PATRIOT Act, which amended ECPA to provide more assistance to law enforcement, will most likely still remain relatively unchanged. For example, Section 216 extended pen register and trap and trace to allow investigators to obtain data like IP and Mac addresses, port numbers, user accounts and email addresses without a warrant.

These reforms are likely to gain support from privacy advocates, will provide more guidance to the judicial system and, ironically, will provide greater assistance to law enforcement. An added benefit may be that fewer criminals will be set free resulting from the absence of a warrant.

Hayes is a professor at Pace University’s Seidenberg School of Computer Science and Information Systems in New York.

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