Domestic spying

Federal Agencies Fight for Warrantless Access to Emails

Why won't Obama put an end to government snooping?

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How would you feel if the government could access a trove of information about who you are, what you do, who your friends are, and what they do by collecting it from email and cellphone providers, search engines, social networking sites, and other websites every day? If you'd be outraged, hold on to that feeling.

Back in 1986—in a bygone era before email, the modern Internet, Facebook, the widespread use of cellphones, and sharing economy sites—the government passed the Electronic Communications Privacy Act. And believe it or not, this is still the law that protects the privacy of your electronic life in 2015.

A petition demanding reforms to ensure that emails cannot be accessed without a warrant achieved the necessary 100,000 signatures on the White House website to get a response. You see, right now, the ECPA considers remotely stored digital files more than 180 days old to be abandoned and forces service providers to hand over those files whenever law enforcement demands—without the need for a warrant. This means that all those old emails in your inbox aren't granted basic due process protections.

At a pace resembling the snail mail of the 1980s—or, more appropriately, correspondence prior to the Pony Express—the White House responded to the petition 593 days later. It agrees that ECPA is outdated and needs reform but suggests that Congress should do the heavy legislative lifting. Unfortunately, civil agencies within the same administration are still fighting to oppose reform in order to maintain easy access to private information.

Thank goodness Congress has been moving on some of these concerns. Bipartisan legislation such as the Email Privacy Act and the ECPA Amendments Act would close the 180-day loophole and beef up other privacy protections. The Law Enforcement Access to Data Stored Abroad, or LEADS, Act also includes those reforms, but it would add an international component in response to Department of Justice efforts to exert global authority over digital data.

During a criminal investigation into the actions of an Irish citizen who stored information on a cloud system with servers located in Ireland, DOJ asserted a right to access that information on the basis that the Irish company is a subsidiary of Microsoft, a U.S. company. This power grab would not only subvert mutual legal assistance treaties, which govern law enforcement requests for access to information across borders, but also expose U.S. citizens to similar infringements by foreign governments.

The case is making its way through the courts, but the LEADS Act would immediately resolve the dispute and update ECPA in favor of greater privacy protections while also ensuring that mutual legal assistance treaties are capable of meeting modern law enforcement needs.

Even a Justice Department official acknowledged at a hearing that "there is no principled basis to treat email less than 180 days old differently than email more than 180 days old." Unfortunately, the same official said civil regulatory agencies should be exempt from the warrant requirement, which would effectively gut the new protections.

In a letter to the Senate Judiciary Committee, the chairwoman of the Securities and Exchange Commission made the same request, arguing that the SEC and other civil regulatory agencies should be exempt from the warrant requirements because they lack the authority to issue warrants.

If the SEC were to succeed in watering down ECPA reform for itself, every civil agency would receive the same snooping power. As opposed to having to subpoena individuals the same way they would for information held on a hard drive or in a physical file, civil agencies want backdoor access to information stored online. That means agencies such as the IRS and EPA could demand emails from service providers without their owners' knowledge and without due process protections. And seeing as providers have no way of determining what is relevant to an investigation, it would guarantee that unrelated and sensitive personal information would end up in the hands of government agents.

If the Obama administration were serious about its pledge to support ECPA reform and protect digital privacy, it would instruct its agencies to stop fighting for exemptions.

© Copyright 2015 by Creators Syndicate Inc.

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  1. A petition demanding reforms to ensure that emails cannot be accessed without a warrant achieved the necessary 100,000 signatures on the White House website to get a response.

    The White House gets to respond that they don’t make legislation, they only get to misinterpret any vague laws Congress passes to rein in authorities.

    1. Government crooks don’t care about the rule of law. They just make it up as they go along!

      1. Sadly, more and more true these days.

  2. “Why won’t Obama put an end to government snooping?”

    Because, as a Liberal, he approves of it, so long as it’s the Democrats doing the snooping. Next question.

    1. So when president Trump is doing the snooping Obama will be singing a different tune?

      1. High Opera, probably.

        1. too easy…
          http://www.nbc.com/saturday-ni…..–1/n10255

        2. High with Oprah?

    2. Note to foreign readers: many Americans believe the word “liberal” means closet communist. In fact it meant “prohibition repealer” back when “conservatives” were trying to preserve the national prohibition amendment.

      1. And that was eighty years ago. Today’s liberals are far more enlightened. They want to outlaw soda.

      2. None of which matters on a libertarian site where we are discussing the government’s unconstitutional spying activities.

        1. Also, you are misinformed or lying. Prohibition was fought for by a large coalition of groups. One of the biggest was the Suffrage movement- not exactly a conservative cause at the turn of the 20th century.

          1. When the women found out their twelve year old-s were becoming alcoholics, they decided that this form of “abstinence” was not what they bargained for, in the end! One of the women instrumental in the Prohibition movement, chose to be its biggest opponent!

            I never applied to the rich and connected, anyway, like most of the laws in this country!

      3. Oddly enough, when the 18th Amendment passed Congress and was sent to the states, Congress was controlled by Democrats. When the 21st Amendment (repeal of Prohibition) passed Congress and was sent to the states, Congress was controlled by Republicans.

        Also, really weird, from Wikipedia, “The Ku Klux Klan was a major supporter of the Prohibition and once it was passed they helped with the enforcement of it. For example, in 1923, Klansmen traded pistol shots with bootleggers, burned down roadhouses, and whipped liquor sellers, and anybody else who broke the moral code” But, hey, the KKK was a Democrat-aligned organization.

        The leader of the repeal movement was Pauline Sabin, a wealthy Republican. And, indeed, she couldn’t get support from Republican leaders, and reached out to Democrats like Roosevelt and La Guardia, thus showing that with constitutional amendments, which require very broad national support, the issues and allegiances go well beyond party lines and a simplistic statement like Democrat == pro-repeal and Republican == pro-prohibition obscures more than it reveals.

        1. Wait, you’re using facts against his feels? Microagression!

        2. I consider your facts to be a microaggression.

      4. Not accurate. Just google modern vs classical liberalism and you will have your real definitions.

        1. So, when the parties “Shifted” sides, name three members of Congress who did so.

  3. “If the Obama administration were serious about its pledge to support ECPA reform and protect digital privacy, it would instruct its agencies to stop fighting for exemptions. doing anything good for this country.”

  4. Even a Justice Department official acknowledged at a hearing that “there is no principled basis to treat email less than 180 days old differently than email more than 180 days old.”

    Unlike the principled basis for treating a 19 weeks 6 days old person as a tumor. Forceps please.

    Not that this sort of health care procedure should be illegal. It just seems if our rulers were interested in principles they would stop playing with words and stop making me contribute my earnings to the violent ending of what every basic biology text book defines as a unique human organism that is viable to surviving birth unless its growth is terminated. It’s good to know, however, that one can be jailed for destroying a fertilized owl egg.

    1. Foreign readers note: mystical fanatics desperately inject into every conversation desperate pleas to have men with guns force American women to reproduce against their will. That is the law in the Mohammedan countries they could emigrate to if they were sincere.

      1. +1 Crank points for deliberately egregious mischaracterization of the pro-life movement.

      2. Yes, because, unless you believe in god, there is no other possible reason to have doubts about the rights of an unborn child vs the rights of the mother. Nope, no reason at all.

      3. Foreign readers note: Hank is not the sharpest knife in the drawer. Feel free to ignore him, and ignore his desperate attempts to get you to click on his link.

  5. Why doesn’t Obama put an end to it? Because he’s OK with it would be the blindingly obvious answer.

  6. A better question than why doesn’t Obama put an end to it is why don’t “small government republicans” (snicker snicker) put an end to it? I expect Obama to act like the Prince of Venezuela but it would be nice if a party that claims to be about small government would actually be for small government especially in a slam dunk case like this. It’s no brainer legislation that should have been written in the first week and voted on the second week after team red took control.

    1. They’re all alright with it. The Reps blame it on Obama, Obama blames it on the Rep controlled congress. No one takes responsibility and nothing changes which they’re all happy with.

      1. They agree that it’s okay to infringe upon our civil liberties, investigate innocent folks all in the name of catching terrorists and finding WMD’s.

        Neither party is on our side, I used to think the Republicans were slightly less evil but I really don’t know anymore.

        1. I view them as more evil in practice because they give an illusion of choice to a number of people. They are the glue that holds together business as usual and prevents an actual small government alternative.

      2. This statement applies to a thousand other violations of our liberties. Time for a reboot or escape, I’m afraid.

        1. Escape to where?

          1. Belize?

            1. Belize is not a bad idea at all. I spent a week down there last winter and was impressed with the entrepeneurial spirit, food and culture. The diving is pretty nice too. And since they speak English it’s not too bad for us anglos. Don’t know much about the government, though.

          2. Libertaria

        2. I believe the Second Amendment provides for the means to “execute” the reboot, no?

          1. It’s times like this that make me wonder what it felt like to be an ‘American’ before the revolutionary war (or first civil war, if you prefer). Being tormented and repressed by a detached, unresponsive, greedy government that failed to respect the basic rights of its citizens. Where was the seed of resistance planted and how was it nurtured? Most importantly, how did it bloom into widespread rebellion? Well, as best I can tell it happened over many years, actually, decades. And many of those who argued in front of the British governors and judges became the leaders when they finally realized that no progress was possible by working within the system. But what then brought them to armed resistance? What made them think success was even possible against the greatest army in the world? Lunacy? Is that where we are?

            1. Character, sir. They had values. They believed in transcendent ideals, like Freedom and Liberty (both with capital letters). Those things – transcendent ideals – have been exterminated from our lexicon and culture by the government indoct- er, “public education” system. Try to imagine some high school union-backed history teacher lecturing about the transcendent values of our society, as set forth by the Founding Fathers and all of those who fought in the Revolution.

              Then we’ve also bred/stamped out anything that looks like the traits that would enable a free people to take up arms against their oppressors. See “The War on Boys.” The military still has these things, but they’ve been corrupted, too. The real question is how long until the yoke gets heavy on veterans – people who actually know how to use physical violence to solve problems. I sometimes think the politicians are just hoping to get the military vet population small enough that there won’t be enough to stand up to them, no matter how horrible the laws passed.

  7. Both the Inner Party and Outer Party politicians see every person in These States as owing them money because of the individual income tax enforced as of 1914. In order to better seize your goods and assets, any competent thief appreciates the advantage of casing the joint before breaking in and stealing. As long as the motive is not selfish, but altruistic–such as to contribute to the support of the national government–stealing and snooping are good because altruism is good by definition. So long as the law sends men with guns to rob you, this is a kleptocracy in which individuals have no right to property or privacy. There is exactly one political party committed to repealing the individual income tax. I vote for it and against the others. Before 1914 people had no experience with communo-fascist socialism and small parties forced the large parties to adopt the tax by running candidates and getting votes. Now that we know about Auschwitz, Treblinka, Ukraine, East Germany, Cambodia, the IRS, etc… we can reverse the damage by voting.

  8. Space, the final frontier….

  9. Why won’t the O admin act?

    Because he’s corrupt evil, mother fucking Poindexter.

    1. Don’t call names like that, this is a website for adults! How can you expect anyone to take you seriously if you are always calling names and not engaging in real conversation! Your choice of words is offensive. Your language is bad and you should feel bad!

      Anyway, it is offensive to all us REAL poindexters who want nothing to do with the stupid bastard.

  10. If the SEC doesn’t have warrant power, then maybe give them the power to go to court to ask for one?

    Or maybe — just maybe — make them go through the same process civil litigants generally have to go through, the annoying and slow civil discovery process …what a shocking thought.

    1. See, and yrs ago, the SEC subpoenaed all my emails. I assumed they already had them, but wanted to legally introduce some into the record.

  11. Why won’t Obama put an end to government snooping?

    Obviously because he doesn’t want to.

  12. Even a Justice Department official acknowledged at a hearing that “there is no principled basis to treat email less than 180 days old differently than email more than 180 days old.”

    What they probably meant though is that they want to be able access email less than 180 days old without a warrant too.

    civil agencies want backdoor access

    Don’t we all…

  13. The main problem, of course, continues to be too many federal agencies.

  14. “If the Obama administration were serious about its pledge to…”

    Are you trying to be funny?

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  16. “Federal Agencies Fight For Warrantless Access To Emails” — really??? Can’t we just fire people who suggest that the government be authorized to snoop through one’s electronic-age versions of “papers and personal effects” without a warrant? Either they can’t (or haven’t bothered) to read the Fourth Amendment, they don’t have the sense that God gave a Quahog to understand that emails MUST be considered as “papers,” or they are simply evil honey badgers who don’t care. For any of those reasons, they should be canned — or caned.

    Fighting to evade the warrant requirement is definitely a natural human thing to do, but it is positively unamerican, and falls under the very small category of things, for which we should have absolutely zero tolerance, in my opinion. Continuing to exploit the loophole in the existing law, while passing the buck to Congress to fix it, is a maneuver that can only inspire contempt, and I don’t want people elected, appointed, or hired into the government who will provide that inspiration. When they start doing so, it is past time for them to leave.

    1. Wouldn’t that mean we could fire the Supreme Court justices who believe in the “third party” doctrine, making virtually everyone’s e-mails, which are stored on a “third party’s” server (unless you are HiLIARy) accessible without warrant.

    2. Sir, I appreciate your reference to the (unofficial) state fish of Rhode Island. Don Bousquet would be proud.

  17. Obama and the rest of the federal menagerie should long since have been told to Piss Of, by the courts. Unfortunately, the courts, all to often, do not work as they should, sometimes they do, all to often, they don’t.

  18. Re the 2 paragraphs excerpted from the article, see below, so much for the “open, transparent government” promised by Mr. Obama. Read on.

    A petition demanding reforms to ensure that emails cannot be accessed without a warrant achieved the necessary 100,000 signatures on the White House website to get a response. You see, right now, the ECPA considers remotely stored digital files more than 180 days old to be abandoned and forces service providers to hand over those files whenever law enforcement demands?without the need for a warrant. This means that all those old emails in your inbox aren’t granted basic due process protections.

    At a pace resembling the snail mail of the 1980s?or, more appropriately, correspondence prior to the Pony Express?the White House responded to the petition 593 days later. It agrees that ECPA is outdated and needs reform but suggests that Congress should do the heavy legislative lifting. Unfortunately, civil agencies within the same administration are still fighting to oppose reform in order to maintain easy access to private information.

  19. Great article.. As you can see now Clinton is having big problems..

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