Yesterday, House Judiciary Chairman Bob Goodlatte promised to work with Senate Judiciary Chairman Leahy to reform the Electronic Communications Privacy Act's increasingly outdated protections of private data stored in the cloud from access by law enforcement. Today, Google released a new Transparency Report detailing the number of requests the company received from U.S. law enforcement from July through December--for the first time breaking down the total number of requests to show which requests came with judicial warrants, issued upon a showing of probable cause, as opposed to mere subpoenas.
"Today’s report reveals a disturbing growth in government surveillance online," said TechFreedom President Berin Szoka, noting that Google's report shows a 136% growth in total requests received during the same period in 2009. "On its own, the growth in number of requests for private information like emails should be alarming, especially after the Petreus case. Even more disturbing is that most requests have not been reviewed by a court to ensure that law enforcement has established probable cause to believe a crime has actually been committed, as the Fourth Amendment generally requires."
Google's report shows that 68% of the requests the company received from law enforcement for user data were subpoenas, and only 22% were warrants, with the remaining 10% being court orders issued under ECPA or otherwise difficult to classify. The report does not distinguish between subpoenas properly issued for basic subscriber information and those improperly issued for content information like email text, for which at least one federal appellate court has held a warrant is required.
"Today's report," explained Szoka, "doesn't really tell us the full extent of unconstitutional privacy invasions. Law enforcement officials rightly note that they need subpoena access to subscriber information as the 'building blocks' for establishing probable case. They also insist they're already getting warrants for content information, even when ECPA doesn't require that. But we still don't have hard data on either claim. Worse, while large companies like Google may rightly refuse to turn over user data without a warrant, smaller companies without legal staffs may feel compelled to turn over private data with only a subpoena, or perhaps even without one at all. That's why Congress needs to act immediately to reform ECPA--to ensure that the Fourth Amendment protects our private communications in the cloud, while still allowing law enforcement to obtain basic subscriber information with a subpoena. Given that the Senate passed ECPA reform at the end of last Congress, it's now up to Chairman Goodlatte to shepherd what should be a uniquely bipartisan reform through the House."
TechFreedom is a part of the Digital Due Process Coalition, an alliance of public interest groups, companies and trade associations dedicated to updating ECPA's protections. TechFreedom recently joined with a number of other prominent interest groups dedicated to limited government on a coalition letter urging reform of the outdated ECPA law.
Szoka is available for comment at firstname.lastname@example.org.