ECPA Reform Discussions See Law Enforcement Calling For More Information Access

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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.

ECPA Reform Discussions See Law Enforcement Calling For More Information Access

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)