Friday, November 30, 2012

Warrantless Wiretap-Dancing

Yesterday the Senate Judiciary Committee voted to update a law, the Electronic Communications Privacy Act, (ECPA), to require law enforcement to obtain a warrant before conducting searches of people’s online communications, including email, Facebook posts, Twitter updates, and documents stored online.  The full Senate is not expected to vote on the changes to the law until 2013. As written the ECPA is somewhat ironically named, since it currently allows law enforcement to view any data stored online for more than six months without a warrant.

Online privacy is good, right?  Which means warrantless searches are bad?  There is a lot of contention on the issue.  Law Enforcement’s chief argument is that the ECPA has been in place for 26 years, and nothing has gone wrong.  Privacy groups argue that the Internet is a different place than it was 25 years ago, so the law should be updated to reflect how people use it today.  Senator Leahey’s bill also weakens the privacy of video viewing history, to the benefit of companies like Hulu and Netflix, so overall any benefit to online privacy may be a wash.

Congress is examining these issues at the same time that an FBI investigation went to the heart of these issues.  The investigation into the affair between CIA Chief David Petraeus and his biographer, Paula Broadwell, presumably was done using some amount of warrantless wiretapping to gather emails related to the affair and the harassment of Jill Kelly by Broadwell.  This investigation will be at the forefront of the minds of the Congress when they take up the bill next year.

CNET last week discovered an alternate version of the amendment last week that would have instead expanded warrantless access to multiple types of online communications of private citizens, from email to Facebook posts, to 22 different federal agencies.  This would have been a reversal from Leahy’s earlier position, and may just have been a part of negotiations between the two sides.  Despite pressure from multiple Law Enforcement groups, Leahy released a statement denying that CNET’s reports were accurate.

Senator Chuck Grassley (R-Iowa), is the ranking Republican on the Senate Judiciary Committee.  Grassley has expressed Law Enforcement’s perspective that creating new barriers for wiretaps could hamper investigations.  At least one amendment to the proposed legislation is expected that would create an exception to the warrant process for cases involving kidnapping, child pornography or violent crimes against women.

This comes after a Federal Appeals court okayed Warrantless Wiretapping in August.  A three judge panel of the 9th U.S. Circuit Court of Appeals wrote in their decision that “This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the Executive branch responsible for intercepting telephone conversations without judicial authorization.”  The case involved two American attorneys who were spied on without warrants as a part of President George W. Bush’s secret terrorist surveillance program.

The case hinged on the issue of Sovereign Immunity.  Even though the United States was breaching its own wiretapping laws, the court reasoned, the plaintiffs could not bring suit against the government for the collection of the information itself.  The court did leave room for the plaintiffs to bring suit against the government if the information were used in some way.  The proposed changes to the ECPA wouldn’t affect the Sovereign Immunity issue, which means citizens still have no real recourse if the government doesn’t follow its own rules.

Not so simple?
It’s not surprising that wiretapping has increased as Law Enforcement has evolved along with the digital age.  The surprising part is that a solution has not come along that helps streamline the warrant requesting process.  The intention behind a warrant isn’t to slow down the searching process, or even to discourage it, but to ensure that a member of another branch of government is available to ensure probable cause exists for the search.  According to the ACLU, warrantless wiretapping has increased over 600% in the last 10 years.  If this continues, by 2020, the Justice Department may request over 100,000 warrantless wiretaps.  I think a long term question should be whether the already overburdened court system can handle even more requests in a timely fashion.

No one is saying that the increase in wiretapping is the result of more crime.  Most crime statistics show that over the last decade, crime rates are down.  Why more wiretaps, then?  Wiretaps represent the way our world has changed to be more data driven.  There is a longer paper trail than there used to be, so Law Enforcement has to follow it.