One of the most recent causes to take hold in the various halls of Washington is the amount of access authorities have to e-mail. The House of Representatives has launched a panel to discuss e-mail with the Department of Justice as well as with experts from Google (News - Alert), and the Senate started drafting a new bill calling for updates to the rules involved in accessing the e-mail of private citizens.
The last time such a bill was passed was with the arrival of the Electronic Communications Privacy Act (ECPA), passed in 1986, and left, many say, quite a few holes in the overall method with which e-mail is addressed. For instance, the ECPA did not require authorities to have a search warrant to request access to old e-mails and messages stored online. This actually afforded those messages less protection than messages that were on a computer hard drive, or even printed matter in a desk drawer.
Currently, accessing technical information related to e-mail can be done with a subpoena, which can be acquired without a judge. A subpoena also qualifies for access to e-mail older than 180 days, or even newer messages if those messages have already been opened. However, companies like Google balked at this particular method, saying that the full search warrant should be required. This led Senator Patrick Leahy (D-Vermont)--who authored the original ECPA--to introduce new legislation to update the law and extend protection to all e-mails stored with third-party providers by requiring a search warrant. However, technical data about the messages could still be had at the subpoena level, but now, the authorities doing the accessing would have to notify the user about the access taking place, and the age of the e-mails in question is no longer relevant.
Leahy's bill does leave some unanswered questions, however, especially in terms of how fast third party e-mail holders should comply with the proper, legally-filed requests for data. Authorities are extremely interested in determining what qualifies as a "prompt response," especially in situations where it essentially becomes possible to "wait it out" and not supply material in sufficiently rapid fashion in response to authorities' requests.
Google's law enforcement and security director, Richard Salgado, underscored this point somewhat himself by repeating his company's refusal to honor subpoenas for investigations of any stripe. Salgado also rejected any notion of honoring government requests based on keywords found in users' searches or in their e-mails.
The notion of privacy in e-mail is an important one to just about anyone who uses e-mail. While most can agree that governments need access to certain tools to do their jobs, most also agree that the ability to dip into e-mail accounts without question is not one of these tools. Requiring a search warrant is certainly not out of line--if a judge can't be reasonably convinced of the need to investigate something, from a warehouse to an e-mail account, then chances are the reasons behind said investigation weren't that good anyway--and likely won't interfere too greatly in investigations while still affording citizens the privacy they seek.
It's one of those issues in which a case could be built in either direction, so it may be for the best to err on the side of citizens' privacy rights.
Edited by Brooke Neuman