WASHINGTON, D.C. – Today, the Federal Trade Commission asked the Senate to give it the ability to search Americans’ emails without a warrant. In its prepared testimony before the Senate Judiciary Committee hearing on reforming the Electronic Communications Privacy Act” (ECPA) to protect Americans’ online communications from warrantless searches, the FTC suggests:
Congress [should] consider providing a judicial mechanism that would authorize the Commission to seek a court order directing the provider to produce the content if the Commission establishes it has sought to compel it directly from the target, but the target has failed to produce it.
“The FTC claims to be a champion of consumer privacy, yet the agency wants access to Americans’ data without a warrant,” said Berin Szoka. “The Commission’s testimony today confirms longstanding rumors that it will only support ECPA reform if it gets a carveout from the bill’s warrant requirement. This is the issue that has stalled ECPA reform for over five years, despite overwhelming bipartisan support. The FTC’s testimony is carefully crafted to sound reasonable, but the agency is simply helping to obstruct the major privacy reform of our generation.”
“After five years of delay, the FTC offers only the vague suggestion that Congress create a ‘judicial mechanism’ for obtaining private data without a warrant,” continued Szoka. “Ironically, despite the FTC’s constant talk about protecting consumer’s reasonable expectations of privacy, the FTC ignores the very real constitutional problem raised by its proposal. The Sixth Circuit has already said the Fourth Amendment requires a warrant for accessing stored content and the FTC offers no Constitutional justification for an exemption from that holding. Nor does the FTC confront the significant practical challenges raised by its proposal to compel production of emails with a user’s consent. While seemingly reasonable, this demand would force cloud providers to become discovery processors — a fundamental change in American law, yet without any clear need for it.”
“Sadly, this isn’t the first time this FTC Chairwoman has helped to kill commonsense reforms that had overwhelming support,” concluded Szoka. ”At the very end of the last Congress, the FTC appears to have been largely responsible for convincing Senator Jay Rockefeller to put a hold on the first major overhaul to the Freedom of Information Act since 1974. The FTC waited until the last possible minute to voice its concern, that the bill could make it possible for corporate defendants to obtain internal agency strategizing about enforcement actions — even though the bill allowed agency to shield such communications. That killed a long-overdue reform supported by 99 other Senators. Let’s hope the same thing doesn’t happen here.”