< I'll Be Watching You


Friday, April 23, 2010

BOB GARFIELD: Last week, federal prosecutors in Colorado withdrew a demand for emails from a Yahoo! user’s account after fierce legal objections from Yahoo! and several digital advocacy groups. The demand was made under the Stored Communications Act, which authorizes the federal government to obtain electronic communications hosted with Web mail services like Gmail or Yahoo! or with Internet service providers, if the government can demonstrate, quote, “reasonable grounds.” The Stored Communications Act was written about 25 years ago when the Internet, as we know it now, now scarcely existed. As the so-called “cloud” hosts more and more of our personal data, both advocacy groups and providers of storage are clamoring for a legislative update. Ryan Singel wrote about the issue on Wired.com. Hey, Ryan, welcome to the show.

RYAN SINGEL: Thanks for having me on, Bob.

BOB GARFIELD: Why create a lower standard for electronic communications than probable cause and a search warrant?

RYAN SINGEL: Back then, they kind of figured what people were going to do is that when you've got electronic communications you would download them from a sort of a central server. And then if you left them there for six months, they were considered abandoned because nobody left anything sensitive on a provider’s computers. And, you know, up until 2004, that actually kind of made sense. But then Gmail came along, and now we're all storing gigs upon gigs of information on their servers.

BOB GARFIELD: I've personally got I don't know many thousands of emails somewhere on, on Gmail servers just sitting there waiting for the government to peek at them. What kind of reasonable suspicion do they need? I mean, how many people have had their stuff peeked at?

RYAN SINGEL: It’s hard to know how many people have because often these come in criminal investigations where those search warrants aren't unveiled and made public. But for those people who are in sensitive positions, it should be worrisome, if you’re a journalist, if you’re a businessperson. It could easily be that the government comes after you, and not even after you, specifically, but you somehow get caught up in an investigation. And then all of a sudden you have a federal agent looking through your email box, which is a mix of your business and your personal life. And that’s not in keeping with the guarantees of the Fourth Amendment.

BOB GARFIELD: This law has been around for almost 25 years, yet it’s suddenly coming to the fore. What has happened recently that the privacy advocates and the Web hosting services have suddenly become so fixated on its potential threat to privacy?

RYAN SINGEL: As you have more and more providers trying to get people to store things on their servers, it becomes an issue that they are concerned about because they have customers that are worried about this. Google just recently gave out statistics about how many requests for user data they get every six months, and they're getting about 20 a day.

BOB GARFIELD: And, in fact [LAUGHS], they kind of flipped the bird at law enforcement by turning this into a kind of an app, a Government Requests Map?

RYAN SINGEL: They certainly are trying to flip tradition on its head. I've been asking companies for this information for forever because there’s no reason that they can't say how many of these they get a year, but companies have just been loath to say anything. So Google sort of not even just sort of coming out with a press release but actually making an interactive map, it’s definitely a dig, not just at the U.S. but also at other countries who are asking the company to take down information or to turn over information on their users on a pretty regular basis.

BOB GARFIELD: So let's go back to the Yahoo! case at issue here. This happened in Denver when a prosecutor requested that Yahoo! turn over a, a user’s email account but did not obtain a, a search warrant based on probable cause. Then what happened?

RYAN SINGEL: The Justice Department’s legal rationale was that any email that anyone had even opened was no longer considered protected. It was no longer in electronic storage, and so they could get at any of those emails. The Justice Department wasn't even just going with a reasonable suspicion. They were essentially saying these emails would be relevant to their investigation, which is a standard that’s a little bit scary because it’s very easy for anyone’s emails to be considered relevant to an investigation.

BOB GARFIELD: But the government backed down. They withdrew the request, which I guess is good news, unless it’s just a tactic to avoid this, this issue being heard in court. Maybe they'll make a similar request in another jurisdiction tomorrow, but in the meantime, no federal court to rule on this tool of law enforcement and, and potentially take it away from prosecutors.

RYAN SINGEL: Exactly. It seemed fairly clear that the Justice Department did not want to push this where they were going to get another ruling that pushed back against their power.

BOB GARFIELD: So now what happens? The advocacy groups would like to see fresh legislation either updating or replacing the Stored Communications Act. What are the prospects for that happening?

RYAN SINGEL: I think it’s actually pretty good. It’s not going to happen right away, but I think you've got some big companies who have Google and Microsoft, and the most centrist of the privacy groups are pushing together to get the law changed. They started a group called the Digital Due Process Group. It seems that the law needs to catch up. That seems to be pretty clear. The question is, is how soon will legislators do it and how hard will the Obama Justice Department fight against it?

BOB GARFIELD: If the Stored Communications Act is rewritten in a way that gives law enforcement less access to suspicious communications, would that in any way offer impunity to racketeers or pornographers or anyone else who can communicate with one another without fear of interference from the cops?

RYAN SINGEL: You know, that’s always been the balancing act of the Constitution. The Fourth Amendment has, has always protected law-abiding citizens from overbearing law enforcement, and also giving a little bit of a shield to people who are doing things in violation of the law. I don't think that that bargain, which our founders forged more than 200 years ago, needs to go away just because we now tend to communicate with one another using these computer services, rather than the Postal Service.

BOB GARFIELD: All right, Ryan, thanks so much.

RYAN SINGEL: Thanks for having me on.


BOB GARFIELD: Ryan Singel covers privacy and technology policy for the Threat Level blog at Wired.com.