Government Agencies: Warrant? We Can’t Be Stopped because No Warrant!

Government agencies are claiming they don’t need a warrant to read your email, and requiring a warrant is a burden.

I really don’t understand why we can’t make this kind of opposition a matter for immediate deposition from office. When agencies complain about needing to get a warrant, they are claiming they shouldn’t have to obey the fundamental law of the United States.

From the National Journal: “Agencies Say They Need Access to Americans’ Emails Without a Warrant.”

The law en­force­ment of­fi­cials were re­act­ing to bills from Sens. Mike Lee and Patrick Leahy, and Reps. Kev­in Yo­der and Jared Pol­is, that aim to up­date the Elec­tron­ic Com­mu­nic­a­tions Pri­vacy Act, or ECPA.

In its cur­rent form, ECPA pro­tects emails from gov­ern­ment snoop­ing for 180 days. When the law was ini­tially drawn up in 1986, email pro­viders routinely re­moved emails from their serv­ers a month or two after they were de­livered; users would gen­er­ally down­load the mes­sages they in­ten­ded to keep. Whatever re­mains on an email serv­er after 180 days is fair game for gov­ern­ment to ac­cess, with just a sub­poena—not a war­rant.

Today, ubi­quit­ous cloud-based email sys­tems like Gmail, which of­fer giga­bytes of stor­age for free, al­low the av­er­age user to keep his or her mes­sages—and cal­en­dars, con­tacts, notes, and even loc­a­tion data—on a pro­vider’s serv­ers in­def­in­itely.

The ECPA Amend­ments Act would re­quire law en­force­ment to get a war­rant to ac­cess serv­er-hos­ted in­form­a­tion, no mat­ter how old, and would re­quire the gov­ern­ment to no­ti­fy an in­di­vidu­al that his or her in­form­a­tion was ac­cessed with­in 10 days, with cer­tain ex­cep­tions.

It is too bad this is merely an act of Congress. It ought to simply be an application of the Constitution. So, while the Supreme Court presumes to legislate on marriage and other issues, the legislative branch is forced to attempt to enforce the Constitution because the Supreme Court can’t be bothered.

[See also, “Show Me State to Let Residents Decide if Law Enforcement Can Look at Emails without a Warrant.”]

But law en­force­ment of­fi­cials ex­pressed op­pos­i­tion to some of the bill’s pro­posed changes, ar­guing that its re­quire­ment for crim­in­al war­rants could leave civil lit­ig­at­ors without ac­cess to im­port­ant elec­tron­ic in­form­a­tion.

“The bill in its cur­rent form poses sig­ni­fic­ant risk to the Amer­ic­an pub­lic by im­ped­ing the abil­ity of the SEC and oth­er civil law en­force­ment agen­cies to in­vest­ig­ate and un­cov­er fin­an­cial fraud and oth­er un­law­ful con­duct,” said An­drew Ceres­ney, dir­ect­or of en­force­ment at the Se­cur­it­ies and Ex­change Com­mis­sion.

Every one of the Bill of Rights “poses significant risk to the American public by impeding the ability” of the government to exercise power. If the FBI requires a warrant when going after suspects in violent crimes, why should the SEC have a lower standard?

It shouldn’t. Tech companies have pointed out that this refusal to grant privacy protections to cloud computing has had repercussions in the industry slowing down adoption of the technology.