ECPA, 4th Amendment, and FOIA: A Trident of Laws Collide on the 25th Birthday of the Electronic Communications Privacy Actby Allison Walton on November 2nd, 2011
Google has publicly released the number of U.S. Government requests it had for email productions in the six months preceding December 31, 2009. They have had to comply with 94% of these 4,601 requests. Granted, many of these requests were search warrants or subpoenas, but many were not. Now take 4,601 and multiply it by at least 3 for other social media sources for Facebook, LinkedIn, and Twitter. The number is big – and so is the concern over how this information is being obtained.
What has becoming increasingly common (and alarming at the same time) is the way this electronically stored information (ESI) is being obtained from third party service providers by the U.S. Government. Some of these requests were actually secret court orders; it is unclear how many of the matters were criminal or civil. Many of these service providers (Sonic, Google, Microsoft, etc.) are challenging these requests and most often losing. They are losing on two fronts: 1) they are not allowed to inform the data owner about the requests, nor the subsequent production of the emails, and 2) they are forced to actually produce the information. For example, the U.S. Government obtained one of these secret orders to get WikiLeaks volunteer Jacob Applebaum’s email contact list of the people he has corresponded with over the past two years. Both Google and Sonic.net were ordered to turn over information and Sonic challenged the order and lost. This has forced technology companies to band together to lobby Congress to require search warrants in digital investigations.
There are three primary laws operating at this pivotal intersection that affect the discovery of ESI that resides with third party service providers, and these laws are in a car wreck with no ambulance in sight. First, there is the antiquated Federal Law, the Electronic Communications Privacy Act of 1986, over which there is much debate at present. To put the datedness of the ECPA in perspective, it was written before the internet. This law is the basis that allows the government to secretly obtain information from email and cell phones without a search warrant. Not having a search warrant is in direct conflict with the U.S. Constitution’s 4th Amendment protection against unreasonable searches and seizures. In the secret order scenario, the creator of data is denied their right to know about the search and seizure (as they would if their homes were being searched, for example) as it is transpiring with the third party.
Where a secret order has been issued and emails have been obtained from a third party service provider, we see the courts treating email much differently than traditional mail and telephone lines. However, the intent of the law was to give electronic communications the same protections that mail and phone calls have enjoyed for some time. Understandably, the law did not anticipate the advent of the technology we have today. This is the first collision, and the reason the wheels have gone off the car, since the standard under the ECPA sets a lower bar for email than that of the former two modes of communication. The government must only show “reasonable grounds” that the records would be “relevant and material” to an investigation, criminal or civil, compared to the other higher standard.
The third law in this collision is the Freedom of Information Act (FOIA). While certain exceptions and allowances are made for national security and in criminal investigations, these secret orders are not able to be seen by the person whose information has been requested. Additionally, the public wants to see these requests and these orders, especially if they have no chance of fighting them. What remains to be seen is what our rights are under FOIA to see these orders, either as a party or a non-related individual to the investigation as a matter of public record. U.S. Senator Patrick Leahy, (D-VT), the author of the ECPA, acknowledged in no uncertain terms that the law is “significantly outdated and outpaced by rapid changes in technology.” He has since introduced a bill with many changes that third party service providers have lobbied for to bring the ECPA up to date. The irony of this situation is that the law was intended to provide the same protections for all modes of communication, but in fact makes it easier for the government to request information without the author even knowing.
This is one of the most important issues now facing individuals and the government in the discovery of ESI during investigations and litigation. A third party service provider of cloud offerings is really no different than a utility company, and the same paradigm can exist as it does with the U.S. Postal Service and the telephone companies when looking to discover this information under the Fourth Amendment, where a warrant is required. The law looks to be changing to reflect this and FOIA should allow the public to access these orders. Amendments to the Act have been introduced by Senator Leahy, and we can look forward to the common sense changes he proposes that are necessary. The American people don’t like secrets. Lawyers, get ready to embrace the revisions into your practice by reading up on the changes as they will impact your practices significantly in the near future.