ECPA reform is important. Digital Liberty is a member of the digital due process coalition, which, among other principles, believes your electronic documents stored in email servers, websites, or the cloud should be covered by the same fourth amendment right protections as hard copy documents stored in your home.
Unfortunately these digital documents lack long-held privacy safeguards. Email saved in web-based email systems like Yahoo for longer than six months can be accessed with an administrative subpoena, which provides less protection than a warrant. Similarly, no matter what privacy setting you use, sensitive and personal information — photos, private journals, Facebook pages, corporate data, draft reports — shared with third parties like Google and Facebook can be accessible by police without a judge’s approval. All the government has to do is swear it’s "relevant" to an investigation.
As Congress heats up its drive to revamp the ECPA companies like Google, Twitter, Facebook, Microsoft and Yahoo are letting the public know how many times the government has requested user information from them without a warrant.
Google’s January Transparency Report noted that 68% of requests for user-identifying information from Google as a third party for online data were through subpoenas, while 22% were through search warrants.
Twitter recently announced that from July 1 through December 31, 2012 that 81% of information requests worldwide originated in the US. The total number of United States requests was 815, specifying 1,145 different user accounts. Only 19% of requests had a warrant, while 60% of the requests had a subpoena and 11% had court orders
Facebook, Microsoft and Yahoo reported that based on a the 2010 federal appeals court ruling, United States v. Warshak, which found police violated a man’s constitutional rights by reading his emails without a warrant, they do not share users information with law enforcement unless they have a warrant. While it is notable that these companies have taken this stance, until the law is fixed at the federal level they are not legally able to withstand these requests. The court’s ruling only applies to its jurisdiction, covering Tennessee, Ohio, Michigan and Kenucky.
The recent announcements from tech companies are shinning a bright light on the privacy issue associated the outdated ECPA and the laudable efforts of Senator Leahy to update the legislation. The time is now for Electronic Communications Privacy Act reform.