The Obama administration is asking Congress to amend the Electronic Communications Privacy Act (ECPA) to give the Federal Bureau of Investigation (FBI) greater access to e-mails and web browsing information. The proposed change would enlarge the scope of information that communications providers must turn over to the FBI without a warrant.
Under the current law, communications companies must give the FBI a customer’s name, address, length of service and toll billing records if the FBI says the information is needed for a terrorism or intelligence investigation. The proposed amendment would require the release of e-mail addresses to which messages were sent, the times and dates e-mail was sent and received, and maybe even a user’s browser history.
Speaking as Chairman of the Senate Judiciary Committee, Senator Patrick Leahy said the ECPA should “be updated to reflect the realities of the Digital Age.” He cautioned, however, that the proposed changes to the ECPA raised important privacy and civil liberty concerns that should be addressed in hearings by the Committee this fall.
A South Carolina woman discovered her husband was having an affair, but she didn’t know the identity of the other woman. So, her daughter-in-law hacked into the husband’s Yahoo e-mail account by changing his password. She copied e-mails exchanged between the husband and “other woman,” and turned them over to her mother-in-law and her divorce attorney.
The husband later sued the daughter-in-law, his former wife, and her divorce attorney for their unauthorized access into his e-mail account. A trial court threw out his lawsuit. It said the husband didn’t show the e-mails were in electronic storage, so he failed to show a violation of the Stored Communications Act (SCA). The South Carolina Court of Appeals, however, reversed the trial court’s decision and reinstated the husband’s lawsuit against the daughter-in-law.
The Court of Appeals said that e-mails stored on the hard drive of the husband’s computer weren’t covered by the SCA. But in this case, the daughter-in-law took the e-mails directly from Yahoo’s system. The Court reasoned that because the e-mails were stored on Yahoo’s servers where the husband could access them again, they were stored by an electronic communication service for purposes of backup protection. They were therefore protected by the SCA.
Billions of e-mails are sent and received every day, from simple “How are you?” messages, to confidential business matters. You may think that the messages you send and receive are private. However, as a recent case shows, your e-mail isn’t as private as you may think it is. In fact, it enjoys very little privacy at all.
Many of the facts of the case aren’t known, but the judge’s decision is important regardless.
In July 2009, federal law enforcement agents asked a judge for search warrants for e-mails that belonged to certain subscribers to Google’s gmail service. The search warrants were issued, but the judge refused the government’s request that the subscribers not be informed about the search of their e-mail messages.
The government thought the judge made a mistake and so it appealed – it asked another judge to look at the request. Judge Michael W. Mosman agreed with the government and decided that the government didn’t have to tell the subscribers that their e-mail accounts were going to be searched. Rather, all the government had to do was tell the internet service provider (ISP), Google.
Judge Mosman decided that the Fourth Amendment to the US Constitution, which protects us from unreasonable searches and seizures at the hands of the government, doesn’t apply to your privacy in your e-mails. Rather, the law – particularly the Fourth Amendment and the Stored Communications Act, which is part of the Electronic Communications Privacy Act of 1986 (ECPA) – requires agents to get a search warrant and serve it on the true owners of the e-mails, the ISP.