Justice Department opposes digital privacy reforms (as does Sen Grassley)

The U.S. Justice Department today offered what amounts to a frontal attack on proposals to amend federal law to better protect Americans' privacy.

James Baker, the associate deputy attorney general, warned that rewriting a 1986 privacy law to grant cloud computing users more privacy protections and to require court approval before tracking Americans' cell phones would hinder police investigations.

This appears the first time that the Justice Department has publicly responded to a set of digital privacy proposals unveiled last year by a coalition of businesses and advocacy groups including AT&T, Google, Microsoft, eBay, the American Civil Liberties Union, and Americans for Tax Reform.

Baker told (PDF) a Senate committee that requiring a search warrant to obtain stored e-mail could have an "adverse impact" on criminal investigations. And making location information only available with a search warrant, he said, would hinder "the government's ability to obtain important information in investigations of serious crimes."

Sen. Chuck Grassley, an Iowa Republican, seemed to agree. It's crucial, he said, "to ensure we don't limit (law enforcement's) ability to obtain information necessary to catch criminals and terrorists who use electronic communication." He also suggested that requiring warrants would lead to "increased burdens on the court system."

The question at hand is rewriting the Electronic Communications Privacy Act, or ECPA, which was enacted in the pre-Internet era of telephone modems and is so notoriously convoluted, it's difficult even for judges to follow.

Also today, a group of conservative and libertarian groups sent a letter (PDF) to Leahy and Grassley urging them to move "immediately" to "extend the Fourth Amendment's protections against the unreasonable search and seizure of digital documents and other electronic information." It was signed by groups including TechFreedom, the Competitive Enterprise Institute, FreedomWorks, and the Liberty Coalition.

"The current standards are messy, inconsistent, and unclear," says Julian Sanchez, a research fellow at the libertarian Cato Institute, which is not part of either group. "I think DOJ has realized is that this is largely severable from the question of whether you...establish consistency in favor of uniformly protecting privacy--or uniformly permitting easier government access."

[snip]

Digital Due Process Coalition Principle No. 1 An Internet or telecommunications provider may "disclose communications that are not readily accessible to the public only with a search warrant issued based on a showing of probable cause."

Justice Department's response (PDF): A warrant is too restrictive because "if a person stores documents in her home, the government may use a subpoena to compel production of those documents." In addition, "not all federal agencies have authority to obtain search warrants." Finally, there's the potential "adverse impact on criminal as well as national security investigations if a probable cause warrant were the only means to obtain such stored communications."

Digital Due Process Coalition Principle No. 2: Police may access "prospectively or retrospectively, location information regarding a mobile communications device only with a warrant."

Justice Department's response: For less precise information from cell towers, a "requirement of probable cause has hampered the government's ability to obtain important information in investigations of serious crimes." A warrant should be used only for "prospective E-911 Phase II geolocation data," typically "derived from GPS or multilateration."

Digital Due Process Coalition Principle No. 3: Police should be allowed to access "prospectively or in real time, dialed number information, e-mail to and from information, or other data currently covered by the authority for pen registers and trap and trace devices only after judicial review and a court finding" that specific and articulable facts show it's relevant and material to an ongoing criminal investigation. That's a lower standard than a search warrant's probable cause requirement, but in practice perhaps not that much lower.

Justice Department's response: It "makes sense that a person using a communication service should be able to consent to another person monitoring addressing information associated with her communications." (In a 2006 brief to the Sixth Circuit in Warshak, the DOJ argued there could be a terms of service exemption: "The Fourth Amendment allows a third party to consent to the search of another's container when the owner expressly authorize[s] the third party to give consent...Any expectation of privacy can be waived, even in a service available to the public.")

We ignore this at our own peril. Is giving the likes of Holder and the rest of the Obama Regime more power a good idea?

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