A bill before Congress that politicians on both sides of the aisle in Washington praise for strengthening civil liberties may actually protect Internet giants like Google and hand federal bureaucrats the power to subpoena every American’s email without first getting a judge’s approval.
Republican Rep. Ted Poe championed the proposed update of the Electronic Communications Privacy Act (ECPA) in a Fox News op-ed Wednesday, saying, “the reforms introduced in the House and Senate would restore ECPA’s original purpose, and protect our privacy in the ways we live, communicate, learn, transact business and recreate today.”
But others who have read the bill closely point out that, while the text requires a judge-issued warrant to obtain content of emails from Fortune 500 IT firms such as Google, the text also authorizes government agencies to use administrative subpoenas. These subpoenas don’t require prior approval of a judge to get other email details from providers and to secure email content directly from an email “originator, addressee, or intended recipient.”
Mark Fitzgibbons, a Northern Virginia lawyer who defends individuals and businesses against federal agencies, said Poe is flat-out wrong on the ECPA. The ECPA and a similar House bill “actually authorize and encourage hundreds of federal and state agencies to violate the Fourth Amendment with respect to the actual content of private emails,” he wrote.
The bill also allows government entities to collect a person’s phone call details — like name, address and bank account number — from providers without a warrant and keep customers or subscribers in the dark.
“While purporting to require warrants signed by judges to search or seize emails from email storage systems, these bills actually expressly allow and give legislative imprimatur to federal and state agencies to issue judge-less administrative subpoenas to obtain private emails and content from individuals, businesses and nonprofit organization, i.e., every person and private entity in America except email storage providers,” Fitzgibbons wrote.
“Since you acknowledge that government agencies may not obtain our emails ‘without showing a judge they have probable cause to believe we’ve committed a crime and obtaining a search warrant,’ then why would the legislation being pushed by Google and supported by so many members of Congress actually encourage government agencies to do precisely that?” Fitzgibbons said of Poe’s op-ed.
Agencies only need to claim information is “relevant” or sparks “official curiosity” with an administrative subpoena, a lower legal bar than say, “probable cause,” according to Christopher Slobogin, professor at Vanderbilt University’s Law School.
Poe did not respond to a request for comment.
Here are key excerpts from the bill:
- “A provider of electronic communication service or remote computing service shall, in response to an administrative subpoena authorized by Federal or State statute, a grand jury, trial, or civil discovery subpoena, or any means authorized under paragraph (1), disclose to a governmental entity the name; address; local and long distance telephone connection records, or records of session times and durations; length of service (including start date) and types of service used; telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and means and source of payment for such service (including any credit card or bank account number), of a subscriber or customer of such service.”
- “A governmental entity that receives records or information under this subsection is not required to provide notice to a subscriber or customer.”
- “Nothing in this section or in section 2702 shall be construed to limit the authority of a governmental entity to use an administrative subpoena authorized under a federal or state statute or to use a federal or state grand jury, trial, or civil discovery subpoena to (1) require an originator, addressee, or intended recipient of an electronic communication to disclose the contents of the electronic communication to the governmental entity; or (2) require an entity that provides electronic communication services to the officers, directors, employees, or agents of the entity (for the purpose of carrying out their duties) to disclose the contents of an electronic communication to or from an officer, director, employee, or agent of the entity to a governmental entity, if the electronic communication is held, stored, or maintained on an electronic communications system owned or operated by the entity.”
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