Justice balks at requiring law enforcement officers to obtain search warrants for all digital data

With Congress expected to take action on Internet privacy legislation this year, the Justice Department on Wednesday warned lawmakers against mandating that law enforcement officers obtain search warrants to access all online communications.

Senate Judiciary Chairman Patrick Leahy, D-Vt., invited Obama administration officials to share their concerns and suggestions about proposed updates to the 1986 Electronic Communications Privacy Act, before his committee votes on updating the law. It is widely acknowledged that technological advances have outpaced the measure's privacy protections.

"There is a willingness for Republicans and Democrats to work together on this," Leahy said at the hearing. "[The law] is outdated from both a national security point of view and a privacy point of view."

The legislation regulates law enforcement's authority to obtain messages transmitted by and stored in digital devices, as well as messages' metadata, or details about the communications other than their content, such as the identities of the senders and their locations.

Privacy advocates and some lawmakers are pushing for legislation that would require government authorities to obtain more evidence against a potential suspect before looking into that individual's mobile text messages, social media accounts and other Web-based transactions. For example, Sen. Ron Wyden, D-Ore., is preparing a bill that would ban tracking the location of possible criminal suspects through mobile devices without a search warrant.

But Justice officials, who agree ECPA needs clarification, oppose changing the law in a way that would obstruct access to communications that are relevant to criminal and national security investigations.

"The kinds of information we're talking about, especially when you come to noncontent information, is critical for our ability to conduct investigations," said James A. Baker, associate deputy attorney general at Justice. "And if we were to raise the standard with respect to some electronic communications, it's going to have an impact on law enforcement investigations."

Part of the reason ECPA needs updating is that courts are applying different interpretations to provisions that govern an officer's ability to obtain cell site information, government officials have said. Cell site data is an approximation of a cellphone user's whereabouts based on the location of the cell tower that is transmitting the user's communications; it is less specific than coordinates derived from Global Positioning Systems. Today, some judges have begun requiring a search warrant based on probable cause to gather cell site details, whereas many other judges only require a court order.

Administration officials oppose mandating that authorities obtain warrants to access cell tower information.

"Some courts' requirement of probable cause has hampered the government's ability to obtain important information in investigations of serious crimes," Baker testified. "Legislation to clarify and unify the legal standard and the proper mechanism for obtaining prospective cell site information could eliminate this uncertainty."

The Justice Department also does not want amendments to restrict the government's authority to obtain a court order for accessing certain stored information. ECPA currently lets investigators use a court order to force service providers to hand over metadata, such as email addresses and network locations, Baker said.

The law states, "[A] court order for disclosure ... may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."

But some courts now are interpreting the word "may" to mean judges do not have to sign court orders even if authorities present the requisite facts, Baker said.

"We need to hear from the law enforcement community to ensure that we don't limit their ability to obtain information necessary to catch criminals and terrorists who use electronic communication," the committee's ranking Republican Chuck Grassley, R-Iowa, said. "Any amendment requires careful consideration to ensure that we don't create loopholes that make it harder for law enforcement to do their jobs."

The government also is against changes to ECPA that would require authorities produce a warrant to search emails stored for more than 180 days. Baker noted not every investigative federal agency is authorized to obtain search warrants. To probe financial fraud, the Securities and Exchange Commission and Federal Trade Commission must have access to the contents of emails. SEC and FTC officials currently issue subpoenas to access messages today, but they lack the power to obtain search warrants.

"Raising the standard for obtaining stored email or other stored communications to a search warrant could substantially impair their investigations," Baker testified.

Not all the government's proposals for updating ECPA are aimed at protecting law enforcement's powers. Some ideas are more focused on safeguarding privacy, such as barring service providers from sharing their customers' personal information with marketers.

Currently, the law does not explicitly restrict service providers from disclosing metadata about individual subscribers to people outside the government. "This approach may be insufficiently protective of customer privacy," Baker testified. "Congress could consider whether this rule strikes the appropriate balance between providers and customers."