Congress Tries Once Again To Require Warrants To Search Emails

from the will-it-actually-happen? dept

Tue, Feb 7th 2017 5:03pm — Mike Masnick

The efforts to reform ECPA -- the Electronic Communications and Privacy Act -- have been going on for basically two decades at this point. The law, which was passed in 1986, has a whole bunch of problems, with the biggest one (as we've discussed dozens of times) being that it considers any email that's been on a server for more than 180 days "abandoned," and thus freely searchable by law enforcement without a warrant. That's because there was no concept of cloud computing back in 1986. People who got email "retrieved" those emails off of a server and downloaded them to local storage. Many in Congress have been trying to fix this for so, so, so many years. And it always gets blocked. The IRS and the SEC have both been fairly proactive in trying to block ECPA reform bills that will require a warrant (funny: I thought it was the 4th Amendment that made such a warrant necessary, but, silly me, no one cares about the 4th Amendment any more).

Last year, a plan to fix ECPA, called the Email Privacy Act, with an astounding 315 co-sponsors, passed the House unanimously. As we noted at the time, this is fairly incredible. In these contentious times -- especially on issues related to surveillance and law enforcement -- to have a unanimous vote on a law that says "get a warrant" if you want access to emails, is quite incredible. But, of course, even with that much support on that side of Congress, the Senate has a way of killing ECPA reform each and every year. Last year, a few Senators -- including Jeff Sessions, who is likely to be our next Attorney General -- tried to bury it with ridiculous amendments that would expand surveillance.

On Monday, the reintroduced Email Privacy Act easily passed the House via a voice vote, showing that our Congressional Members still recognize how important this is. Of course, now it gets to go back to the Senate, and we saw how well that worked last year. And then we have to believe that President Trump will sign the bill. Stranger things have happened, of course, but it still seems like a longshot that real ECPA reform will become law this year. It's great that Rep. Kevin Yoder, along with Reps. Jared Polis, Bob Goodlatte, John Conyers, Ted Poe, Suzan DelBene, Will Hurd, Jerry Nadler, Doug Collins and Judy Chu keep pushing this bill. I disagree with many of the folks on that list on a number of other issues we cover, but the fact that they're willing to support basic 4th Amendment concepts for email is worthy of recognition. Now, hopefully, the Senate won't try to muck it up again.

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Filed Under: 4th amendment, ecpa, ecpa reform, email, email privacy act, irs, kevin yoder, sec, warrants

49 Comments

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Anonymous Coward, 7 Feb 2017 @ 5:25pm

Stranger things have happened

We gotta stop saying that.
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Anonymous Coward, 7 Feb 2017 @ 5:29pm

Congress? What is it?
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Anonymous Coward, 7 Feb 2017 @ 5:40pm

Re:
The opposite of Progress.
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Anonymous Coward, 7 Feb 2017 @ 5:40pm

Re:
The opposite of Progress.
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That One Guy (profile), 7 Feb 2017 @ 5:43pm

Re:
The best tools money can buy.

However, much like a busted clock even they can get something right every so often.
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Anonymous Coward, 7 Feb 2017 @ 5:58pm

its so cute...
This is already codified in the United States Constitution. The 4th was written in such a way as to even encompass technological storage methods... hell it would even cover magical motherfucking methods of data storage.

No wonder we are losing our rights hand over fist... nothing but utter fools and vagrants serve as the vanguards of our liberty!
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Rapnel (profile), 7 Feb 2017 @ 5:59pm

Re:
The last hurdle for tyranny.
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Coyne Tibbets (profile), 7 Feb 2017 @ 6:02pm

Amnesty
But...but...but...if we require warrants for email...how will we ever convict Hillary? Is this a backdoor Hillary amnesty?
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Anonymous Coward, 7 Feb 2017 @ 6:04pm

Re: Re:
You are completely incorrect. I am betting you will NEVER figure it out either. Good luck, sir! I care not for telling you, in as much as I would like to tell you, it is more important for you to seek it out and learn for yourself. The lesson is not so cheap that way. I would encourage others to seek it out as well, not likely, but perhaps I am overly pessimistic?
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Anonymous Coward, 7 Feb 2017 @ 6:20pm

What happened to your tag-line?
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Anonymous, 7 Feb 2017 @ 6:44pm

If somebody wants something signed by Trump, all they have to do is say it will either increase his business, punish Muslims, or is related to his wall!
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Anonymous Coward, 7 Feb 2017 @ 6:56pm

Re:
Don't forget this method.

http://www.independent.co.uk/news/world/americas/donald-trump-yemen-raid-agree-to-policy-bara ck-obama-would-not-do-james-matthis-qassim-al-rimi-a7566861.html
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Rapnel (profile), 7 Feb 2017 @ 7:02pm

Re: Re: Re:
Not completely incorrect but I'll forgive you your line of sight. As for that horse, seriously, dude, how the hell do you get onto that thing every day? That thing's a beast.
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Anonymous Coward, 7 Feb 2017 @ 7:02pm

Abandoned Email
if we can have copyright over 100 years in duration, surely our email can get a little better protection than 6 months.
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That One Guy (profile), 7 Feb 2017 @ 7:13pm

Telling objections
The IRS and the SEC have both been fairly proactive in trying to block ECPA reform bills that will require a warrant (funny: I thought it was the 4th Amendment that made such a warrant necessary, but, silly me, no one cares about the 4th Amendment any more).

A warrant simply requires that the one requesting it clearly state what they are looking for and where, and judging by past stories most judges tend to issue them without much pushback unless they're very weak, so the fact that the IRS and SEC both object so strongly to a simple warrant requirement is a pretty good indicator that they're engaged in extensive fishing expeditions, browsing through emails just because they can in the hopes of finding something they can use.
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That One Guy (profile), 7 Feb 2017 @ 7:25pm

What standards are you using?!
The raid, which had been planned for two months before Mr Trump’s arrival in the Oval Office, killed 30 civilians and one US Navy SEAL but failed to kill its alleged target, al Qaeda leader Qassim al Rimi.

The raid on a suspected al Qaeda camp in a remote village in Yemen’s central Bayda province on 29 January was Mr Trump’s first military operation as Commander in Chief and the White House insisted it was “a successful operation by all standards”.

30 civilians killed, plus one SEAL team member, trying for a target that may or may not have even been there but escaped either way, and the WH spins the operation as a success 'by all standards'. I'd hate to think what it would take for an operation to be considered a failure if they're setting the bar that low.

Reading the article it sounds like the only thing they actually managed(besides getting a bunch of civilians killed, including a kid) is to get some intel. Spinning a debacle like that as a 'success' is a joke without a punchline.

The USG is headed by someone so easily swayed that the weakest form of peer pressure, 'I bet the other guy wouldn't have the guts to do it' is enough to get him to comit military forces. Oh yeah, that's not worrying at all.
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Eldakka (profile), 7 Feb 2017 @ 7:37pm

Re: Abandoned Email
Interesting point.

Perhaps it's not abandoned on an email server, it's actually stored in my copyright-content repository?
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That One Guy (profile), 7 Feb 2017 @ 7:56pm

Re: Abandoned Email
Huge difference.

Copyright, as all good citizens know, is The Most Important Law Ever, Upon Which The Entire US Economy Rests, and therefore it is only right that it be for all intents and purposes eternal and have stringent protections.

That trivial 'privacy' and '... right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated' though? Bah, that's just some words written on some moldy piece of low quality paper, hardly important or relevant in today's world.
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The Logician (profile), 7 Feb 2017 @ 8:00pm

The Fourth Amendment
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This amendment contains no specification as to what form a person's papers and effects may take, and as has already been pointed out above, its protection extends to any technological format used to store such information. It is illogical and incorrect to assume that such electronic messages somehow lose that protection merely due to age. The Fourth Amendment has no expiration date. And I concur with That One Guy that it is highly likely that the IRS, SEC, and many members of the Senate profit from removing that protection either directly or indirectly. Therefore, it is imperative that this law by the House be passed in spite of this corruption. Patrick Henry's words were "Give me liberty or give me death!" Not "Give me security or give me death!"
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Anonymous Coward, 7 Feb 2017 @ 8:09pm

This proposed change to the ECPA has a bizarre exemption to warrant requirements for information on advertisements shown to someone.

This is quite bizarre to me. Is the behavioral targeting quality of advertisements really so investigatorially important?
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That One Guy (profile), 7 Feb 2017 @ 8:13pm

Re:
That does sound odd, could you post the relevant text?
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Anonymous Coward, 7 Feb 2017 @ 8:31pm

Even if the Senate gets it's thumb out of its ass and passes it as is, Trump, who is a big big fan of autocratic or corrupt governments and rule by decree is going to veto it.

The truly sad thing is that the court system has let such a blatant breech of the 4th Amendment pass with a wink and a nod for 30 years. More proof of a police and "justice" system out of control.
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Anonymous Coward, 7 Feb 2017 @ 8:43pm

Re: Re: Re:
On a scale of 1 to whoh,how high are you rights now?
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Anonymous Coward, 7 Feb 2017 @ 9:55pm

Re: Re:
Sure thing.

https://www.congress.gov/bill/115th-congress/house-bill/387/text

Section 3.i.(3).
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Anonymous Coward, 7 Feb 2017 @ 9:57pm

Re: Re:
Sure thing.

https://www.congress.gov/bill/115th-congress/house-bill/387/text

Section 3.i.(3)

------

SEC. 3. AMENDMENTS TO REQUIRED DISCLOSURE SECTION.

...

“(i) Rule Of Construction Related To Legal Process.—Nothing in this section or in section 2702 shall limit the authority of a governmental entity to use an administrative subpoena authorized by Federal or State statute, a grand jury, trial, or civil discovery subpoena, or a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction to—

...

“(3) require a person or entity that provides a remote computing service or electronic communication service to disclose a wire or electronic communication (including the contents of that communication) that advertises or promotes a product or service and that has been made readily accessible to the general public.
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Rapnel (profile), 7 Feb 2017 @ 10:08pm

Re: Re: Re: Re:
Let's see.. (counts cans, looks at mirror, checks pile, counts cash, smells weed can)

Well, it appears that after a few page loads, my girl, five beers, two fat rails and .. I don't know, a lot of bong hits that while waiting for anonymous smartyspooky pants here to drop a hint I've achieved pretty damn high, so.. for scale fitment I'm definitely somewhere between the first w and h. For sure. I might even be a bit close to o. I'm definitely pretty much totally who'd, I think, yeah.

Is this your first time posting? Were you scared? .. Did you need meds? I definitely do, fuck, shit is real.

So, since, you know, meds, any idea what kind of rabbit he's got in that hat? No? Well I've read the wiki god damn pedia page three times and can find no hint of a reason why congress is not on the road to tyranny. Dude said I was completely wrong. Harsh, man. Totally harsh.
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That One Guy (profile), 7 Feb 2017 @ 10:23pm

Re: Re: Re:
Thanks.

Ah legalese, we meet again...

Wading through that I think the general gist is that the law doesn't prevent a warrant from compelling someone who provides an ad to provide said ad and it's contents to the one serving the warrant, so long as the ad has been made available to the general public.

It is in legalese so I might be completely misreading it, but as far as I can understand it now, yeah, I have no idea why they'd put that in there, adding a section specifically addressing ads like that.
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Mike Masnick (profile), 7 Feb 2017 @ 11:26pm

Re: Telling objections
A warrant simply requires that the one requesting it clearly state what they are looking for and where, and judging by past stories most judges tend to issue them without much pushback unless they're very weak, so the fact that the IRS and SEC both object so strongly to a simple warrant requirement is a pretty good indicator that they're engaged in extensive fishing expeditions, browsing through emails just because they can in the hopes of finding something they can use.

You forgot probable cause. A warrant requires probable cause. That's actually a decently high bar.
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Not an Electronic Rodent (profile), 8 Feb 2017 @ 12:36am

Re: The Fourth Amendment

This amendment contains no specification as to what form a person's papers and effects may take, and as has already been pointed out above, its protection extends to any technological format used to store such information. It is illogical and incorrect to assume that such electronic messages somehow lose that protection merely due to age.

Then it appears that logically, while knowing sod-all about law (especially US law) which isn't always logical, isn't the way to challenge this to get a whole bunch of people who've had their emails searched and challenge it in court as unconstitutional? Wouldn't that supersede a specific law, whatever it says?
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Profitable, 8 Feb 2017 @ 3:58am

Re: The Fourth Amendment
Ah, I see you are using the old text of the 4th amendment. The word "probable" has been changed to "profitable". We're not sure quite when this change occurred, but its effects have been more and more clearly observed since just some months after the beginning of the 21st century.
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Anonymous Coward, 8 Feb 2017 @ 4:30am

Congress is only looking out for their best interest, not ours
because congress wants the ability to have private email accounts to do government work, out or reach from a FOIA request. This assures that a warrant is now necessary to access those accounts.
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That One Guy (profile), 8 Feb 2017 @ 4:46am

Re: Re: Telling objections
Ah, so I did, though I'm not so sure if I'd agree with the 'decently high bar' line.

Barring a fishing expedition where there's no real target other than 'whatever we can find' by the time an agency/officer goes to a judge to get a warrant they should have more than enough evidence to show why the search is justified, making that requirement an easy one if they have an actual justification for the search.
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Anonymous Coward, 8 Feb 2017 @ 5:20am

Re: Re: Re: Re: Re:
Damn AC, you got knocked the fuck out. I'd stay down after that if I were you.
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Anonymous Coward, 8 Feb 2017 @ 5:24am

Re: Re: Re: Re: Re: Re:
Damn.. I was laughing so hard I even manged to post on the wrong comment...You hit that dude so hard, I think I got some on me way over here. I'm gonna go wash up now.
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Anonymous Coward, 8 Feb 2017 @ 6:00am

How much you wanna bet something happens in the senate to kill it? Taking all bets! I also offer video poker!
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Anonymous Coward, 8 Feb 2017 @ 6:38am

Re: Amnesty
No, trump wants *his* email server to need a warrant so he has time to dump the incriminating evidence
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R.H. (profile), 8 Feb 2017 @ 7:00am

Re: Re: The Fourth Amendment
Yes, assuming that the Supreme Court hasn't already ruled on the issue of email with regards to the fourth amendment, that's exactly what needs to happen.
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Anonymous Coward, 8 Feb 2017 @ 7:21am

Re: Re:
TO bad that didn't seem to be a issue with Obama doing the exact same thing. As he said, He had a Pen & a phone and can just sign a executive order if Congress wasn't going to do what he wanted. Some reason all that was OK. Trump now just doing what Obama has been doing and now it's Tyranny. Funny how that works. Can't have it both ways.
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Anonymous Coward, 8 Feb 2017 @ 7:40am

Re: What standards are you using?!
Well; If Trump matches the rate of increase of drone strikes from the Obama administration, and the target to civilian death ratio of the same, expect to see a lot more of these types of stories.

So far, Obama is the reigning king of killing children and civilians with drones. He far out killed Bush by a significant margin. It doesn't really give me a warm and fuzzy with him having won the Nobel Peace Price.

"https://www.thebureauinvestigates.com/2017/01/17/obamas-covert-drone-war-numbers-ten-times-st rikes-bush/"

https://www.theatlantic.com/politics/archive/2016/03/the-obama-administrations-drone-str ike-dissembling/473541/
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Anonymous Coward, 8 Feb 2017 @ 7:44am

Re: Re: Re: Re:

Wading through that I think the general gist is that the law doesn't prevent a warrant from compelling someone who provides an ad to provide said ad and it's contents to the one serving the warrant, so long as the ad has been made available to the general public.

My interpretation is similar, but I think that you glossed over an important bit. That section purports to allow warrants, administrative subpoenas, and civil subpoenas to be sufficient to compel cooperation with regard to advertising e-mail. If I were naive and charitable, I would say that is a fancy way of saying that they can subpoena spam e-mail, but need a warrant for directed communications. It's possible that this is some sort of nod to the SEC, so that it can rely on subpoenas to try to discover multi-level marketing scams, improper solicitations to buy stocks, etc.
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sigalrm (profile), 8 Feb 2017 @ 8:08am

Re: Re:
CongressCritters saw first hand the importance of email in the last campaign, and none of them are _really_ sure about what the FBI will do next time around.

The "Email Privacy Act of 2017" is going to be the new "Video Privacy Protection Act" of 1988. The politicians have too much to lose from _not_ protecting email at this point, and they know it.
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Rapnel (profile), 8 Feb 2017 @ 8:27am

Re: Re: Re:
psst, hey, your agenda is showing again, cover that shit. It seems that the script in your head has not come to terms with the words your eyes have taken in and as a result your output cannot be reconciled with previous inputs. Nothing is "OK". Funny how both ways goes both ways.
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FamilyManFirst (profile), 8 Feb 2017 @ 10:46am

Re: Re: The Fourth Amendment
You've forgotten the catch-22 where the Court requires standing to bring a lawsuit. To have standing you must be able to show that your emails have been searched. That information is locked up behind "national security" so that you can't know if your emails have been searched. Thus, no standing; thus, no lawsuit is possible.

How our USA courts can possibly go along with this is beyond me but so far, much to my surprise and dismay, they almost always have.
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Anonymous Coward, 8 Feb 2017 @ 10:51am

Re: What standards are you using?!

“a successful operation by all standards”.

Killing an eight year old US citizen (a little girl)? Why, that's a super success by white house standards! Children are on notice!
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orbitalinsertion (profile), 8 Feb 2017 @ 11:53am

Re: Re: Amnesty
What does this have to do with "what Trump wants"?
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orbitalinsertion (profile), 8 Feb 2017 @ 11:57am

Re: Re: What standards are you using?!
Yes, well, after they killed her brother under Obama, apparently they wanted none of that family left outside the States.
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Anonymous Coward, 8 Feb 2017 @ 1:20pm

Re: Re: Re: Re: Re:
Interesting. How does that square with advertisements with services you explicitly signed up for? Does an email saying "Based on your recent purchase history, here's other products we think you may be interested in..." qualify as an advertisement in this context? If so, that's a proxy for finding out someone's purchase history (to a degree).
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Wendy Cockcroft, 9 Feb 2017 @ 5:41am

Re: Re: Re: What standards are you using?!
It's a Neocon thing. They prevent most of us from understanding this by taking root in both parties.
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Nyrgs (profile), 9 Feb 2017 @ 11:59am

A reservation with the Email Reform Act
Arcane that it is, my concern with the Email Privacy Act is that it specifically exempts congressional committee subpoenas. In the 114th Congress, six House committees adopted rules that authorized their chairs to unilaterally issue subpoenas, usually with a nod and notice given to the ranking minority representative. There is no judicial appeal of congressional subpoenas. This invites politically motivated fishing expeditions that can be abused by either party.
Committees in the 115th Congress have been holding their organizational meetings and adopting their rules. The House default rule on subpoenas is approval by a committee’s majority, empowering the chair to issue subpoenas during any period in which the House has adjourned for a period of longer than three days, again with a nod to the ranking minority. Variously written, it would seem the number of committees in the 115th Congress that are empowering their chair to unilaterally issue subpoenas will be close to the number in the 114th. This looks like it'll includes the Committees on Energy and Commerce, Financial Service, Ways and Means, (which I understand has long provided their chair this power), Agriculture, Judiciary, and maybe Science, Space, and Science. Given the extreme and unhelpful partisanship in Congress, this is an issue more of us need to pay attention to.
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