The DOJ is going after the proposed amendments to ECPA that would require warrants for accessing data stored in the cloud.
[Assistant Attorney General] Baker told a Senate committee that requiring a search warrant to obtain stored e-mail could have an “adverse impact” on criminal investigations. And making location information only available with a search warrant, he said, would hinder “the government’s ability to obtain important information in investigations of serious crimes.”
That’s just bull-hooey. Apparently one of the pillars of our freedom, that citizens be safe from unwarranted government intrusion and free to challenge such intrusions, is not necessary in a free society according to the DoJ. These amendments would make the protections we have in the “real world” apply to the virtual world (our Gmail and Hotmail accounts, online data storage).
To be clear, I want to distinguish between “content” and “non-content”. Fourth Amendment jurisprudence has traditionally distinguished between the two. For example, the same protections extended to the content of a phone call between two people are not extended to obtain a list of numbers dialed (e.g., a pen register). I would suggest that meta data is content, but the phone numbers called from a cell phone are not. These analogies would be consistent with current case law interpretations (that’s a general statement with which you can find exceptions, but as a general rule it’s correct).
I love the circular reasoning that the courts would be over burdened. Funding for the courts has never been adequate and is now being cut in most states. So let’s cut funding for the courts and then use that as an excuse for not passing these necessary amendments because the courts would be burdened. My cat can see through that logical fallacy.
The requirement to obtain search warrants has not led to the collapse of our society thus far. If speed is an issue, amend judicial process to allow electronic warrants through digital judicial signatures so that warrant applications and their approval can be filed and issued instantly through electronic process.
I also love that the testimony claims that ECPA in its current state is critical to national security. If you read the testimony, there’s nothing in ECPA that the DoJ relies on to conduct its business the way it does currently. It’s what isn’t in the law that allows them to operate the way they do currently. Also, in none of the illustrative scenarios in his testimony does Baker say that law enforcement could not have obtained a warrant.
This is a crucial debate that if not resolved correctly will chill both free speech and innovation. New technologies should not result in the reduction of the right to privacy and in particular, the right to be free from unwarranted government intrusion.