According to Google's transparency report released today, there has been a 29% increase in the total number of law enforcement requests for information and a 47% increase in the number of accounts impacted by those requests when compared to Google's transparency report from the second half of 2012.
What is especially troubling is that of the 10,918 user data requests received over the last 6 months, 7,458 were subpoenas to Google. Those 7,458 data requests affected 15,770 accounts, and 84% of those subpoena produced some kind of information to law enforcement.
Because a subpoena was used in these cases and not a warrant, it is unlikely that the person or accounts targeted by law enforcement agencies were aware that their content held by Google was read, and it is also unlikely that there was judicial oversight of the request.
What is unfortunate is that a law intended to protect Americans’ privacy is now being used to invade their privacy. The Electronic Communications Privacy Act (ECPA) was enacted 27 years ago, and at that time it was a forward-looking statute, but it has been out paced by technology.
Senator Leahy originally introduced ECPA, and he is now working with Senator Lee to bring it into the digital era through S.607. For example, under current law, email saved in web-based email systems like Google 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. S.607 would fix that by requiring a warrant for all digital content. Unfortunately, federal agencies, particularly the SEC, are standing in the way.
After revelations about the IRS and the NSA, and now seeing the upswing in requests reported by Google, the possibility of amendments to S. 607 that would weaken Fourth Amendment protections in the digital space are particularly alarming. An amendment to provide administrative agencies such as the Security and Exchange Commission (SEC) with additional investigatory powers beyond the scope of civil investigations would result in damage to personal privacy.
Because of the need for clean ECPA legislation and increases in these types of requests from law enforcement, Digital4th launched a petition encouraging the Administration and Congress to pass ECPA reform without exceptions for federal agencies.
In January of 2013 many tech companies released transparency reports with troubling statistics and more are sure to follow if Google’s report is of any indication. There have been numerous efforts by companies and advocacy organizations across the political spectrum to urge Congress not to include exceptions to the warrant requirement. In one coalition letter sent to the Senate Judiciary Committee advocates for updating ECPA said,
“the sweeping change sought by the SEC would extend to all civil investigations conducted by the IRS, EPA, FCC, FEC, CFPB, and the whole panoply of regulatory agencies. It would reverse current law and practice, under which these and other government agencies cannot gain access to more recent communications content from a third party service provider without a warrant…”
It is best to preserve the traditional system, in which “a regulatory agency serves a subpoena on the target of its investigation requiring that the target turn over documents that respond to the subpoena." This would ensure a proper balance between the investigatory needs of administrative agencies and personal privacy.
Join with us in urging Congress and the Administration to pass ECPA reform without exceptions for federal agencies. Sign the petition here