Feds Oppose Digital Privacy Reforms

The Obama administration and the Department of Justice are not too keen on reforming ECPA, but if ECPA reform is necessary, then DOJ has a wish list of eight (non privacy-enhancing) changes.

Probable cause warrants? There's no time. Digital privacy and constitutional protection for American's email stored in the cloud? Those are burdens that would have an "adverse impact" on the government catching criminals as well as endanger national security.

In the same old song and dance routine, the feds are claiming that requiring a search warrant to get their hands on stored e-mail in the cloud would make it too hard on them - the terrorists or child molesters would get away. I suppose it is rather silly to believe the Constitution and 4th Amendment actually applies to protecting us. But for those of us who do believe it and who believe in privacy, we'd rather law enforcement and the feds obey the law as opposed to simply disregarding it. One of the problems is that some of the good guys seem like bad guys on a phishing trip "just in case" they find something, some of them seem to be abusing the law.

Portions of Electronic Communications Privacy Act (ECPA) have been amended, but no sweeping reforms have been made to ECPA since it was passed in 1986. Since privacy protections in the law have certainly not kept up with communication technologies, Congress is considering reforming ECPA. The Digital Due Process coalition is pushing for different wording in ECPA which would offer "protection suited to the way technology is used today." That includes requiring law enforcement to obtain a search warrant - which is certainly is not how things are done these days.

The Obama administration and the Department of Justice (DOJ) are not too keen on reforming ECPA, but if ECPA reform is necessary, then DOJ has a wish list of eight changes. When James Baker, the associate deputy attorney general, testified before a senate committee [PDF], he said the government can "appreciate" concerns about "the rule that the government may use lawful process short of a warrant to obtain the content of emails that are stored for more than 180 days." That ability was described as "vital to our mission to protect the public from terrorists, spies, organized criminals, kidnappers, and other malicious actors."

And yes, Baker also played the child card - cause it's hard for any parent to not want child predators stopped. But "speed is essential" and apparently justice could not be served effectively if law enforcement had to pause long enough to prove probable cause and to actually obtain a search warrant. The DOJ boiled ECPA reform down to a scale where pursuing criminals and national security responsibilities are weighed against privacy and civil liberties.

The eight desired changes that the DOJ might like to see if ECPA is reformed, included the following:

(1) Prospective cell-site information
(2) Appellate jurisdiction for ex parte orders in criminal investigations
(3) Clarifying the standard for issuing 2703(d) orders (basically using a court order without needing to prove probable cause or need a search warrant or pen/trap order)
(4) Extending the standard for non-content telephone records to other similar forms of communication
(5) Clarifying the exceptions in the Pen Register statute
(6) Restricting disclosures of personal information by service providers
(7) Provider cost reimbursement (meaning not to allow ISP to charge government for turning over customer name, address and "related identifying information." Microsoft spies for free now.)
(8) Compelled disclosure of the contents of communications

Baker also testified, "Congress should recognize the collateral consequences to criminal law enforcement and the national security of the United States if ECPA were to provide only one means - a probable cause warrant - for compelling disclosure of all stored content. For example, in order to obtain a search warrant for a particular email account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account."

We shouldn't be shocked. A short time ago, DOJ attorneys argued that warrantless tracking of cell phones is fine since Americans enjoy no "reasonable expectation of privacy" in their mobile phone's location.

How do we find out what is truly happening in the murky shadows behind the curtains of the government? By requesting the details through the Freedom of Information Act (FOIA). When the Associated Press obtained uncensored emails from within Homeland Security, the intensely secretive review process for FOIA requests was labeled by insiders as "constant stonewalling," "meddling," "nuts" and "bananas!" In December 2009, Chief Privacy Officer Mary Ellen Callahan wrote in an email that scrutiny involved in the vetting process of FOIA request was "crazy" and she hoped someone outside the Obama administration would find out about the details of the political reviews. Callahan added, "I really really want someone to FOIA this whole damn process."

If you would like to review highly censored versions, DHS has posted them here. Also online is the House Oversight Committee hearing, "Why Isn't the Department of Homeland Security Meeting the President's Standard on FOIA?"

Like this? Check out these other posts:

• All of today's Microsoft news and blogs
• Is Skype a security risk that endangers your privacy?
• TSA Surveillance: Peep Show, Police State, Privacy Invasion or All Three?
• 4Chan Founder Moot: 'Anonymity is authenticity,' Zuckerberg 'wrong'
• Hacked: Xbox LIVE Banhammer Stepto Gets Jacked
• The Devil Is In The Details: DHS Monitoring Keywords & Social Media
• No Conspiracy Theory Needed: Tor Created for U.S. Gov't Spying
• Ridiculous DHS list: You might be a domestic terrorist if...
• Former FBI Agent Turned ACLU Attorney: Feds Routinely Spy on Citizens
• Watchdog to Obama: Schmidt policing online privacy is like Madoff heading SEC

Follow me on Twitter @PrivacyFanatic

• Security
• Security
• communication technologies
• DHS
• Digital Due Process
• digital privacy
• doj
• ECPA
• electronic surveillance
• email stored in the cloud
• feds
• FOIA
• government surveillance
• law enforcement
• privacy
• probable cause warrant
• security
• surveillance
• warrantless tracking
• warrantless tracking of cell phones