We’ve been talking a lot recently about the secretly authorized stuff our government does to us — like killing us, or molesting us at airports.

Here’s another one for the list: digging through our emails or Twitter feeds or cell phone data, without probable cause, our permission, or our knowledge. This isn’t necessarily shocking in and of itself; back in April, Kashmir Hill wrote about how often the government requests information about private individuals from tech companies.

What’s shocking is the ease with which the government gets that information and the secrecy with which it does so. Somehow it’s all based on a law that is older than the Internet. The policy recently came to light when authorities ordered a small Internet provider, as well as Twitter and Google, to turn over information about Jacob Appelbaum, an American who volunteers with WikiLeaks.

How does the U.S. government circumvent basic probable cause and search warrant requirements when it wants electronic information? Let’s see….

When the U.S. Justice Department ordered Twitter to turn over information about Appelbaum, the company fought the order and also fought to be able to notify him of what was happening. It was also discovered that Google had received the same requests. In March, a federal magistrate judge sided with the government, again ordering the company to turn over the information (mostly IP addresses), but Twitter has appealed. A small Internet provider called Sonic.net went through the same ordeal. They ended up turning over Appelbaum’s documents, but on August 31, the court agreed to unseal the court order.

In a nutshell, it’s all because of the 1986 Electronic Communications Privacy Act. Julia Angwin at the Wall Street Journal explains:

Law enforcement uses the law to obtain some emails, cellphone-location records and other digital documents without getting a search warrant or showing probable cause that a crime has been committed. Instead the law sets a lower bar: The government must show only “reasonable grounds” that the records would be “relevant and material” to an investigation.

As a result, it can be easier for law-enforcement officers to see a person’s email information than it is to see their postal mail.

Another significant difference: A person whose email is inspected this way often never knows a search was conducted. That’s because court orders under the 1986 law are almost always sealed, and the Internet provider is generally prohibited from notifying the customer whose data is searched. By contrast, search warrants are generally delivered to people whose property is being searched.

The secrecy makes it difficult to determine how often such court orders are used. Anecdotal data suggest that digital searches are becoming common.

Clearly, this is a problem. Lawyers love to say that technology will always move faster than the law, but this is more than our legislative system’s routine crawl.

The law “was designed to give the same protections to electronic communications that were already in place for phone calls and regular mail,” according to the article. I’m not sure what kind of electronic communication was going on back then — email hadn’t been invented and people were talking on cinderblocks cell phones like this. The Justice Department probably loves this law because it allows investigators to play fast and loose with the Fourth Amendment in ways they can’t with the phone, snail mail, or pretty much anything. Because, you know, it’s unconstitutional.

Just a few weeks ago I wrote about a cop who was ruled to have violated the Fourth Amendment by simply moving a computer mouse to wake it from sleep mode. Turns out he should have just gotten a secret court order instead.

Major tech companies (Google, Microsoft, and AT&T, for starters) have already started lobbying to change the law. Because God knows they already get enough demands for information from the government in the form of subpoenas and search warrants. Even U.S. Senator Patrick Leahy (D. Vt.), who wrote the bill, made the astute observation that the law is “significantly outdated.” Thanks Pat. Glad to see our tax dollars have kept your mind sharp for the last 30 years.

At least one judge, U.S. Magistrate Judge Stephen Smith of the Southern District of Texas, has spoken out against the law as well, according to a companion article also written by Angwin:

“We diminish our legitimacy when we do things under a blanket of secrecy,” Judge Smith said in an interview. “The only way people can get confidence in what we’re doing is if they can get access to what we are doing and know why we are doing it.”

Judge Smith analyzed the 4,234 electronic surveillance orders issued in his Houston courthouse between 1995 and 2007 and found that 91.8% of them remain sealed today.

Judge Smith says he now sets time limits for the seals on orders that he signs. If prosecutors want to renew the seal, they must request an extension. “It’s more work,” Judge Smith says, “but I think it’s necessary work.”

The Wall Street Journal article cites two other recent federal cases lambasting the government’s electronic search policies. And I imagine this is just the beginning.

Secret Orders Target Email [Wall Street Journal]
One Judge Who Is Leading the Charge Against Secret Orders [Wall Street Journal]


Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at [email protected]. You can read more of his work at chrisdanzig.com..


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