Fixing privacy issues with archived email
BY SCOTT HENSON, Dallas Morning News, March 18, 2013
Do you use Gmail or another cloud-based email service? If so, did you
know that all of your archived emails older than 180 days may legally
be accessed by the government without a warrant? Most people are unaware
of that weird glitch in federal law, which stems from the 1986
Electronic Communications Privacy Act. Even fewer people are aware that
Texas’ search warrant statute incorporates that standard by reference in
Article 18.21, Sec. 4 of the Code of Criminal Procedure.
When the ECPA passed in the 1980s, the typical personal computer may have had 64K of memory. With computers possessing so little storage, it was impossible to imagine back then that email would ever be saved longer than 180 days because hard drives couldn’t store that much information. Today, with cloud-based email services proliferating, millions of people have correspondence older than 180 days stored on a third-party server, which means law enforcement can access it without a warrant.
The federal Sixth Circuit Court of Appeals in U.S. vs. Warshak (2010) ruled the ECPA was unconstitutional and required law enforcement to get a warrant to access old emails, but that decision applies to federal searches in Kentucky, Tennessee, Ohio and Michigan only. The Justice Department did not appeal the ruling, perhaps out of fear the Supreme Court might extend the requirement nationwide.
In January, Google announced that it would begin asking for warrants when law enforcement requests older emails based on the Sixth Circuit precedent. One hopes other cloud-based email providers will follow suit, but not all of them have the deep pockets to go toe-to-toe with the feds in court. Prior to Google’s recent decision, 68 percent of law enforcement requests to the company for subscriber information involved only subpoenas with no judicial oversight.
Texas law appears to have slightly stronger standards for searches of old emails by state and local law enforcement than the feds, but that’s really an illusion. Texas’ statute says law enforcement can access emails older than 180 days either with a warrant, if they don’t want to notify the subscriber, or with only a subpoena if the subscriber is notified (not that notice would do you any good if you wanted to oppose the request).
But the statute includes an exception you could drive a truck through: Law enforcement may get the information with only a subpoena “as otherwise permitted by applicable federal law,” i.e., the ECPA statute the Sixth Circuit held was unconstitutional.
Rep. Jon Stickland, R-Hurst, has introduced HB 3164, which would delete all the caveats and exceptions in Texas’ statute — including the phony, outdated distinction between more recent emails and those older than 180 days — and leave the law declaring, simply, “An authorized peace officer may require a provider of electronic communications service to disclose the contents of a wire communication or an electronic communication in electronic storage by obtaining a warrant.”
That’s the right standard. The Fourth Amendment declares, “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.”
What are emails but our modern “papers”? That they’re not printed on dead trees does not mitigate the fact that most Americans believe they have a reasonable expectation of privacy as it pertains to their private communications. The Legislature should pass Stickland’s bill and begin to reinvigorate Fourth Amendment protections for the modern era.
Scott Henson writes a blog, gritsforbreakfast.org, on Texas criminal justice issues and is working with the Texas Electronic Privacy Coalition to support HB 3164.
When the ECPA passed in the 1980s, the typical personal computer may have had 64K of memory. With computers possessing so little storage, it was impossible to imagine back then that email would ever be saved longer than 180 days because hard drives couldn’t store that much information. Today, with cloud-based email services proliferating, millions of people have correspondence older than 180 days stored on a third-party server, which means law enforcement can access it without a warrant.
The federal Sixth Circuit Court of Appeals in U.S. vs. Warshak (2010) ruled the ECPA was unconstitutional and required law enforcement to get a warrant to access old emails, but that decision applies to federal searches in Kentucky, Tennessee, Ohio and Michigan only. The Justice Department did not appeal the ruling, perhaps out of fear the Supreme Court might extend the requirement nationwide.
In January, Google announced that it would begin asking for warrants when law enforcement requests older emails based on the Sixth Circuit precedent. One hopes other cloud-based email providers will follow suit, but not all of them have the deep pockets to go toe-to-toe with the feds in court. Prior to Google’s recent decision, 68 percent of law enforcement requests to the company for subscriber information involved only subpoenas with no judicial oversight.
Texas law appears to have slightly stronger standards for searches of old emails by state and local law enforcement than the feds, but that’s really an illusion. Texas’ statute says law enforcement can access emails older than 180 days either with a warrant, if they don’t want to notify the subscriber, or with only a subpoena if the subscriber is notified (not that notice would do you any good if you wanted to oppose the request).
But the statute includes an exception you could drive a truck through: Law enforcement may get the information with only a subpoena “as otherwise permitted by applicable federal law,” i.e., the ECPA statute the Sixth Circuit held was unconstitutional.
Rep. Jon Stickland, R-Hurst, has introduced HB 3164, which would delete all the caveats and exceptions in Texas’ statute — including the phony, outdated distinction between more recent emails and those older than 180 days — and leave the law declaring, simply, “An authorized peace officer may require a provider of electronic communications service to disclose the contents of a wire communication or an electronic communication in electronic storage by obtaining a warrant.”
That’s the right standard. The Fourth Amendment declares, “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.”
What are emails but our modern “papers”? That they’re not printed on dead trees does not mitigate the fact that most Americans believe they have a reasonable expectation of privacy as it pertains to their private communications. The Legislature should pass Stickland’s bill and begin to reinvigorate Fourth Amendment protections for the modern era.
Scott Henson writes a blog, gritsforbreakfast.org, on Texas criminal justice issues and is working with the Texas Electronic Privacy Coalition to support HB 3164.
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3 comments:
I agree. Our privacy needs to be protected, even if we have nothing to hide. It seems prosecutors from time to time have taken something said and put a twist to it.
I am curious Scott, would this include Facebook accounts and the corresponding messaging going on there? I have been told by an attorney that I have had detectives on my Facebook account. I had nothing to hide so didn't get concerned but it felt a bit like I had been violated, as if a burglar was in my house.
I think it would, Audrey. The bill deals with "electronic communication." It would not include public messages, so the answer may depend on your privacy settings.
I suppose, bottom line, nothing we do or say is private and is subject to interpretation...speaker/writer beware. It seems, just the as 1st Amendment can be bent, so can the 4th.
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