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Law Enforcement Wants Your Text Messages Stored for Investigations

Mar. 20, 2013 11:05am Liz Klimas

ECPA Reform Discussions See Law Enforcement Calling For More Information Access

(Image: Shutterstock.com)

The House Subcommittee on Crime, Terrorism, Homeland Security and Investigations on Tuesday began hearings for updating the 1986 Electronic Communications and Privacy Act. Some believe it’s time for reform that would tighten online privacy in favor of the individual, while others hope for opportunities that could give them more access to information.

Law enforcement, for example, advocated in favor of requiring wireless providers to maintain data, like text messages, for longer periods of time. Richard Littlehale with the Tennessee Bureau of Investigation told the subcommittee (via his prepared remarks) it was important for officials to access stored data for criminal investigations.

“The simple truth is that legal barriers are not the only ones that keep communications records out of law enforcement hands,” Littlehale said. “In many instances, we are unable to utilize evidence that would be of enormous value in protecting the public because the technologies used to carry and store that information are not accessible to us, no matter what legal process we obtain.”

Because of this, Littlehale encouraged the ECPA reform to include rules for preservation of information:

In particular, most cellular service providers do not retain stored text messages accessible to law enforcement for any time at all. Billions of texts are sent every day, and some surely contain key evidence about criminal activity. In some cases, this means that critical evidence is lost.

Littlehale also said that reform might also include provisions that would require a more timely response to law enforcement requests.

As for notifying customers of the requests made for their data, which many have voiced support for, Littlehale said this would be a burden on law enforcement:

Several ECPA reform proposals have borrowed language from wiretap law requiring notification of customers of legal demands, or securing a series of separate court orders delaying notification. These provisions risk diverting critical law enforcement resources from investigations simply to comply with burdensome notification provisions or delay orders that do not offer any additional constitutional protections, and may actually threaten ongoing investigations.

Similar sentiments to those expressed by Littlehale Tuesday are also held by several other law enforcement groups, according to CNET.

At the same time, privacy advocates hope the hearing will result in more protections for individuals’ information. The Electronic Frontier Foundation, Google and others are petitioning the government to strengthen online privacy laws by updating ECPA.

U.S. Sen. Mark Kirk (R-IL) stood near computers that were cutting edge techonology in 1986 before a news conference about the 25th anniversary of the Electronic Communications Privacy Act (ECPA) October 18, 2011 in Washington, DC. U.S. Sen. Krick and U.S. Sen. Ron Wyden (D-OR) called for the ECPA legislation to be updated so to ensure that the government must get a warrant from a judge before tracking our movements or reading our private communications. (Photo: Chip Somodevilla/Getty Images)

Google’s Legal Director of Law Enforcement and Information Security Richard Salgado testified in favor of updating ECPA to require a warrant for obtaining emails older than 180 days.

In his prepared remarks (via Mashable), Salgado said the current application of the law, in light of technological advances in the decades since, “frustrates users’ reasonable expectations of privacy.”

“Users expect, as they should, that the documents they store online have the same Fourth Amendment protections as they do when the government wants to enter their homes to seize documents stored in a desk drawer,” Salgado said.

The acting assistant attorney general in the Office of Legal Policy, Elana Tyrangiel, also told the House Judiciary subcommittee that there is no principled basis to treat email less than 180 days old differently than email more than 180 days old. She also said emails deserve the same legal protections whether they have been opened or not.

Her comments were in contrast to previous testimony by Justice Department officials, asking Congress not to do anything that would disrupt law enforcement’s ability to investigate violent crimes and child pornography.

Tyrangiel said, however, that Congress should carve out an exemption for civil investigators, such as federal regulators looking into alleged antitrust or environmental violations. Those investigators should only require a subpoena to review emails, she said, because their work doesn’t involve criminal charges.

Tyrangiel also said that Congress should consider making it easier for law enforcement to see who is emailing or otherwise sending online messages to whom. She said existing law requires law enforcement to obtain a warrant or court order to access that information for emails, whereas only a subpoena is needed to obtain telephone records.

“While law enforcement can obtain records of calls made to and from a particular phone using a subpoena, the same officer can only obtain ‘to’ and ‘from’ addressing information associated with email using a court order or a warrant, both of which are only available in criminal investigations,” she said.

Greg Nojeim, senior counsel at the Center for Democracy and Technology, said such proposals “run in the opposite direction” of where Congress is headed and are unlikely to gain traction. Allowing warrantless review of email logs in particular, he said, “removes a judicial check on a very intrusive surveillance power. Records about who you communicate with can almost be more revealing than the content of your communications.”

On Tuesday, Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) also introduced a bill to reform ECPA, favoring stronger privacy protections.

Read all of Littlehale’s prepared remarks advocating for making data more accessible to law enforcement for investigations here.

The Associated Press contributed to this report. Featured image via Shutterstock.com.

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(H/T: CNET)

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Comments (36)

CHUCK9899
Posted on March 23, 2013 at 10:31pm
Time to start using burn phones or ones not trace able and switch them out ever one to two months.

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christianUSA
Posted on March 21, 2013 at 3:13pm
Opinion: It apPears some so called law enforcement is not content with what many, and some Major justices, think Anti-constitutional invasion of privacy without the courts or not even content with nsa storage or tracking and listening by cell by cable tv by internet by email etc or soon vehicle black boxes plus trackers but now are demanding all unwarranted noncourt monitoring and searches information be stored for them by us or our communication businesses etc at Our Expense, even though some federal court/s have ruled against such. How is all this not, guilty until shown proven beyond shadow of doubt moment by moment innocent? For them privacy rights is only if it is not cheep, for them, to monitor and spy on US; they are showing they have no real regard to law limits or boundaries. However despite sunshine laws the elite “Public” law makers secretly meet in deciding many of the most important controlling laws; when these break many rules or our rights or unrestrained spending what penalty do they pay? often none. But to US If they could it seems they like putting in each of us thought monitor or control chips; What’s next what else is even possible but inserting radio tracking chips in each of us like cattle or like 666; that our every movement monitored and our funds and purchase controlled.

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ImChiquita
Posted on March 21, 2013 at 8:52am
You know, whichever spy agency is on to my family, they’re going to get sports updates (baseball), film quotes, lessons on why George Lucas isn’t allowed to touch “Star Wars” anymore, and religion. Mostly religion, but that’s about it.

I apologize in advance to anyone assigned to us. Hopefully we’re entertaining if nothing else. ;)

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repairsea
Posted on March 20, 2013 at 6:11pm
Just occassional text that said pooped today and it isn’t code. It is because I am old and constipated. Good luck.

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abefij
Posted on March 20, 2013 at 1:54pm
Why stop there? All USPS mail should be opened and scanned, and we should all be required to wear microphones with a feed to a government data center so they can keep a log of all our conversations.
If we won’t allow that, then why the !@#$% should we allow storing our online communication? They do it because it’s easy, and our representatives are fond of passing bills they don’t read. They are treating us like criminals and telling us what they are doing after the fact.
Revoke the Patriot Act.

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moreteaplease
Posted on March 20, 2013 at 1:39pm
As for notifying customers of the requests made for their data, which many have voiced support for, Littlehale said this would be a burden on law enforcement:
———————————
Yeah, okay.

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- WarMunger_Al
  Posted on March 20, 2013 at 1:52pm
  “law Enforcement” are gestapo thugs. They have crossed so far over the line , there is no going back. Time to eliminate all law enforcement agencies and return to the people protecting themselves.
  
  Report this comment
- JRook
  Posted on March 20, 2013 at 1:57pm
  Well if it is the house, the committee is dominated by Republicans. So tell me again how they are champions of individual rights and freedoms. Other than those that coincide with insuring company growth and profits like the 2nd amendment.
  
  Report this comment
- ImChiquita
  Posted on March 21, 2013 at 8:50am
  I saw that, too.
  
  A burden on the employees? What, they actually have to work instead of sitting on their butts and rake in taxpayer dollars?!
  
  Report this comment
omgfolks
Posted on March 20, 2013 at 12:40pm
Without reading the entire article I have come to the conclusion that this is just another step goverment and law enforcement uses to reduce out right under the constitution. Wireless companies need to Protect the Users Privacy PERIOD. To allow Goverment access to records is just stupid. Every day we hear of how the goverment and Law Enforcement excuse themselves into Americans loss of right. I am ashamed that more Americans are not upset and pushing the goverment back out of their lives. Hell the goverment is broke, they ran us into debt with their spending and now they are attacking our rights. WHAT FOR? Because they intend to take more and more and more, and if they control everything Americans will be at their mercy… Tyranny is running rampant and needs stopped before all of our rights are gone….

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media-bias-steals-elections
Posted on March 20, 2013 at 12:34pm
There are two major problems with this discussion, number one, storing data of this size is not cheap, forcing citizens, especially in large areas of the country where citizens average income is $17K per year, would require that we drive up the costs of communications dramatically. The reason why phone bills are affordable to all, is that we don’t store this stuff?

#2, citizens should not have to treat every piece of communication as last will and testament of the uni-bomber? People write careless communications all the time? Put it this way, what if we required every television show on Earth, to pass a requirement by the EPA that broadcasting that programming is not a waste of resources?

Asking for tools like this is like asking your local sherrif department to monitor 900 cable tv channels, then submit weekly reports to the local city council why you think a show should continue, or not continue to be on the air?

Police work is boots on the ground? Steal money online, you got to go pick up the money? Deal drugs, you got to pick up and deliver? Start wars, somebody has to crawl around in the dirt and eat bugs? In other words, we can’t watch tv shows like CSI and Person of Interest and conclude that government is going to stop crimes before they occur?

It would be nice to think that, but the communications world is neither designed for security, neither can people afford the costs to make it secure?

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- LakeHartwellSailor
  Posted on March 20, 2013 at 5:25pm
  Every sentence you wrote, with the exception of the first sentence, ends with a question mark. You sound like a 1980′s Valley Girl.
  
  Report this comment
IFUDONTSTANDUPWHOWILL
Posted on March 20, 2013 at 12:28pm
More? They want even more? We have laws, we have the consititution, we have the BofRs! Stop infringing and changing America. I’m so damn sick and tired of this assault on my freedom – the very things that make me an American. WTH! I watch last Wednesday’s “for the record” on Blaze in absolute horror. Has this crap been going on all my life or did I just begin paying better attention a decade ago? WTH, WTH, WTH?!

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- naughtycal
  Posted on March 20, 2013 at 12:42pm
  This is yet another example of why the system is and enemy of AMERICA AND HER CITIZENS.
  Everyday I heard yet another example of WHY WE NEED to reduce law enforcment budget and remove power from the power of the gestapo agents.
  
  Report this comment
ROBIN_SAGE
Posted on March 20, 2013 at 11:57am
Big Brother looking for FURTHER power. and looking to FURTHER usurp the constitution? NAW!?!?!

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denkat56
Posted on March 20, 2013 at 11:44am
Don’t they all work for dept. Of Justice. Its totally up to their discretion as to of the police to decide what’s a potential threat. You know just like fast and furious, bengazi. Or what they can create to put anybody in jail and prison. Big brother can’t even monitor itself and now they want to monitor Americans.

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P4cooler
Posted on March 20, 2013 at 11:41am
All law enforcement should start with the tyranny of the unconstitutional Dept of Homeland Security. They just purchased 7000 fully automatic M-4 Carbines (machine guns) for use as PDWs (personal defense weapon) for Homeland security employees. Each holds 30 rounds per magazine, has 16″ barrel for use in tight spaces. How about helping us Conservative Americans stop the relentless assault on our 2nd amendment rights to own firearms? You can read our mickey mouse emails & texts, but start watching the true terrorists in Washington DC that are shredding our Constitution and bringing in an Obama holocaust. We have 40 trillion of America’s wealth stashed offshore. Zero bankers have been arrested and taken to court, instead they get promotions. Spy on the tyranny in Washington DC. Stop labeling us fine hard working value producing Americans as terrorists. Save our beautiful America. Support Conservatism.

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- JRook
  Posted on March 20, 2013 at 2:29pm
  Right now think who bought and owns the politicians and who benefits from the vast majority of federal spending and federal control. Hint, not the middle or lower class… hence the majority of Americans. When push comes to shove guess who the will be protecting when people are finally fed up with a systems which is owned, operated and milked by the large corporations and the wealthy.
  
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Stoic one
Posted on March 20, 2013 at 11:38am
This government is seeking more power on every front…..NO GO attempt to reproduce with your self.

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republitarian
Posted on March 20, 2013 at 11:35am
This is simple.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Get a warrant.

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SpankDaMonkey
Posted on March 20, 2013 at 11:24am
.
Let’s all text them “GFYS We Will Not Comply”…..

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IndyGuy
Posted on March 20, 2013 at 11:21am
Hey Big Brother….Which finger am I holding up???

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justangry
Posted on March 20, 2013 at 11:20am
Law enforcement? Last I heard the supreme law of the land was the Constitution. What laws would they be enforcing by not heeding it?

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AUsername
Posted on March 20, 2013 at 11:16am
get a warrant.

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publicas
Posted on March 20, 2013 at 11:16am
Sure, just make sure the cops text are given the same requirement. It’d be nice to read what they text-ANYTIME.

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AmericanStrega
Posted on March 20, 2013 at 11:15am
Why don’t we all just let the government place a monitor in our homes and cars that allows them to watch our every single move. WOW, just think of all the crimes they could solve then. Remember, Big Brother is always watching YOU!

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- retiredguy1952
  Posted on March 20, 2013 at 6:22pm
  OR….they could just pass legislation to arrest and imprison citizens before we have the CHANCE to commit crimes. It is more efficient that way, Comrade!
  
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right-wing-waco
Posted on March 20, 2013 at 11:15am
So…… do they think I am speaking in code if I send a message to my daughter and ask “what’s up”? These people are getting a little spooked, don’t you think.

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- Ben__Franklin
  Posted on March 20, 2013 at 2:26pm
  “Whats Up” means did you place the contraband “Up In there hidden well” to them.
  
  Minority Report anyone?
  
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Cavallo
Posted on March 20, 2013 at 11:14am
Big Brother is watching.

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FlagWavingPatriot
Posted on March 20, 2013 at 11:14am
I wish I’d lived in the 18th or 19th century.

All this technology is great. Until it isn’t.

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SteelJewel
Posted on March 20, 2013 at 11:14am
I don’t think so…

…this is why I am a real social networking person, you know face-to-face

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kickagrandma
Posted on March 20, 2013 at 11:11am
No thank you.

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- AmericanStrega
  Posted on March 20, 2013 at 11:23am
  Grandma, Haven’t noticed your posts lately and was wondering about you. Hope you are doing well.
  
  Report this comment
- kickagrandma
  Posted on March 20, 2013 at 11:39am
  @AMERICANSTREGA ~~~ Thank you for your wishes. By GOD’s good grace I am doing well, thank you. Good to be back. I’ve missed you all.
  
  Report this comment
- AmericanStrega
  Posted on March 20, 2013 at 11:43am
  You’re welcome, and glad to see you back.
  
  Report this comment

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