Privacy bill requires search warrants for e-mail, cell tracking

But the U.S. Justice Department seems certain to oppose the privacy-enhancing requirements, part of legislation introduced today by Rep. Zoe Lofgren.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
Nicole Ozer from the ACLU of Northern California at an event in Washington D.C. last year supporting more e-mail and location privacy.
Nicole Ozer from the ACLU of Northern California at an event in Washington D.C. last year supporting more e-mail and location privacy. Declan McCullagh/CNET

Police must get warrants to access Americans' e-mail and track their cell phones, according to new privacy legislation that promises to spark a political spat between high-tech firms and law enforcement.

The bill, introduced today by Rep. Zoe Lofgren -- a Democrat who represents the heart of Silicon Valley, including the home turf of Apple, Google, and Intel -- would generally require law enforcement officials to obtain a search warrant signed by a judge before they can access cloud data or location information.

It's backed by a phalanx of companies, including Amazon.com, Apple, AT&T, eBay, Google, Intel, Microsoft, and Twitter. Liberal, conservative, and libertarian advocacy groups are also members of the so-called Digital Due Process coalition.

But it's easier to block legislation than advance it. The U.S. Department of Justice will likely try just that: it's previously warned that requiring warrants for e-mail could have an "adverse impact" on investigations. And tougher legal standards for location data, the department claims, would hinder "the government's ability to obtain important information in investigations of serious crimes."

Police opposition has been successful in derailing similar privacy legislation. Last week, a U.S. Senate committee postponed a vote on a bill requiring police to obtain search warrants before accessing files stored in the cloud, including e-mail, after law enforcement groups including the National District Attorneys' Association and the National Sheriffs' Association objected.

The Justice Department has not responded to queries from CNET this afternoon. We'll update this story if we receive a response.

"The Internet is a thriving and vibrant engine for cultural and economic growth because it empowers people to connect and share information globally with limited restrictions," Lofgren said. The bill will prevent "overbroad government surveillance," she predicted.

Ryan Radia, associate director of technology studies at the Competitive Enterprise Institute, a coalition member, called Lofgren's bill a "superb piece of legislation that would ensure Fourth Amendment protections remain meaningful in the information age."

Lofgren's bill would amend the 1986 Electronic Communications Privacy Act, enacted during the pre-Internet era of telephone modems, dial-up bulletin boards, and 5.25" floppy disks. ECPA is so convoluted, it's difficult even for judges to follow, and was not written with cloud computing and social networks in mind.

The Digital Due Process coalition hopes to simplify the ECPA's wording while requiring police to obtain a search warrant to access private communications and the locations of mobile devices -- a requirement that doesn't always apply today. Under current law, Internet users enjoy more privacy rights if they store data locally, a legal hiccup that could slow the shift to cloud-based services unless it's changed.

Chris Calabrese, legislative counsel at the ACLU in Washington, D.C., says that the bill's requirements are modest, especially because one appeals court has already ruled that search warrants are required for e-mail. "We think law enforcement can live with it," Calabrese said.

Because Lofgren announced her measure, called the ECPA 2.0 Act of 2012, a few days after the U.S. House of Representatives has adjourned until after Election Day, its introduction is primarily symbolic. It gives both sides something to spar over for the rest of the year, and she said in a fact sheet to expect it again in 2013.

CNET was the first to report on the Justice Department's warrantless tracking of cell phones in a 2005 news article. Since then, cell phone tracking has become a regular component of criminal investigations. It comes in two forms: less detailed retrospective data kept by mobile providers for their own billing purposes, or prospective data that reveals a device's minute-by-minute location. (Last year, the Justice Department went even further and called for new laws requiring mobile providers to collect and store information about their customers.)

Lofgren also introduced what she called the Global Free Internet Act of 2012, which would create a federal committee that would review policies enacted by the U.S. or foreign governments that "impede the free flow of information on the Internet."

Last updated at 3:00 p.m. PT