Federal law enforcement agents should be required to obtained a specific warrant for the seizure of electronic data such as e-mails in civil and criminal investigations, according to a report released by White House advisors last week.
The report calls for a modification of the 1986 Stored Communications Act, a law that currently requires technology companies to hand over e-mail messages and other user information when served with a subpoena. Law enforcement officials prefer using subpoenas over warrants because, unlike a warrant, a subpoena doesn’t require probable cause or a judge’s signature and, in return, officers and agents are able to seize a wealth of user information.
But technology companies, many of whom have been critical of the U.S. government’s data collection and surveillance techniques since many clandestine programs were disclosed by Edward Snowden last year, have recently started challenging such requests, arguing that digital content should require a specific search-and-seizure warrant.
Microsoft argued this point recently when it challenged a government request to access the e-mail data of an unidentified Outlook.com user that is stored in another country. In court, Microsoft asserted that the government “doesn’t have the power to search a home in another country, nor should it have the power to search the content of email stored overseas.”
But a magistrate judge disagreed, telling Microsoft that the data was subject to the Stored Communications Act regardless of where it was held, and expressed concern that if law enforcement agents were required to get cooperation from foreign officials — in this case, law enforcement in Ireland — it could create a substantial “burden” on investigators in the United States.
Microsoft says it will continue fighting the order, arguing digital data shouldn’t be treated any differently from tangible, real-world objects that can only be seized by police through a warrant. On this point, the White House committee sided with Microsoft in its report, urging Congress to “amend (the law) to ensure the standard of protection for online, digital content is consistent with that afforded in the physical world” — in other words, to make sure digital data is treated the same way as tangible things with respect to law enforcement investigations.
“Email, text messaging and other private digital communications have become the principal means of personal correspondence and the cloud is increasingly used to store individuals’ files,” the committee wrote in the report. “They should receive commensurate protections.”
If the recommendations are enacted by Congress to modify the Stored Communications Act, it would require law enforcement officials to bring probable cause before a judge in order to get a warrant to dig through a person’s e-mail or online profile. But it’s unlikely that Congress will act on the White House committee’s recommendations anytime soon.
As Geoff Duncan of the website TidBITS noted on Monday, lawmakers are holding off on any large-scale reforms as they gear up for the mid-term election (many want to get re-elected). Short of a presidential executive order, law enforcement agents will — at least for the foreseeable future — be allowed to demand sensitive digital data, including personal e-mails, from tech companies with virtually no oversight or challenge.
Matthew Keys is a contributing journalist for TheBlot Magazine.