Warrants Must Be Required for Digital Data Access

Growing up, I enjoyed watching L.A. Law and Law & Order.  So it was at a relatively young age that I learned that a warrant was required for the police to search your home and personal belongings. In law school, my criminal law classes focused on the need for the police to follow proper legal procedures to obtain a search warrant. Case after case demonstrated that the Fourth Amendment protects us against unreasonable searches and seizures—a basic tenet of American jurisprudence.

When I began practicing law at the dawn of the Internet Age, I soon realized that in the digital space, this long-held, common-sense approach to law enforcement searches is not always applicable. Surprisingly, searches in the physical world almost always require a warrant while searches in the “digital world” generally do not.  Under the 1986 Electronic Communications Privacy Act (ECPA), enacted with 1980s technology in mind, the legal need for a warrant to access one’s personal digital content depends on the type of technology utilized to store the data and how old the correspondence is.   

According to an Electronic Information Privacy Center (EPIC) analysis of ECPA, the backbone of U.S. digital privacy law, law enforcement does not need a warrant to access both opened and unopened emails stored in the cloud for more than 180 days.  In contrast, emails located on a home hard drive and opened emails that are less than 180 days old require a warrant.

The deficiencies in this approach are becoming more apparent every day.  For example, law enforcement agencies across the country are using mobile devices called Stingrays  to collect information that is stored on our cell phones and other digital devices without warrants. Law enforcement has refused to discuss, even in court, the technology utilized in Stingray devices. And this is just one example of overreach.    

Our current legal framework worked best in 1986. ECPA made sense then because lawmakers didn’t envision people storing thousands of personal files for years on remote or cloud-based servers.  In 1986, these technologies did not exist.  Over the past 30 years, technological innovation has changed how we create, access, process, and archive digital content.  Today, many people store personal emails and data in the cloud or apps.  Due to the growing interconnectedness of our society, many of these platforms have servers located around the globe.  At any given time, our data may be processed, archived, or stored in servers anywhere in the world.        

Whether a warrant is required to access one’s digital data should not depend on the age of the content, the technology utilized to store the information, or the location of the data.  In the face of ECPA’s limitations, some states, such as Virginia and California, have enacted laws requiring a warrant before Stingray technology may be deployed.  A forward-thinking national law that requires a warrant to access digital content regardless of data’s age or the type of storage technology utilized is needed. 

Fortunately, Congress has recently proposed a bipartisan fix to this problem with the introduction of the Law Enforcement Access to Data Stored Abroad Act (LEADS).  This bill offers a well-balanced approach that requires law enforcement to obtain a warrant when it wants access to personal digital content.  If data is located on an app or a server that is located overseas, it requires law enforcement to follow the legal process required to obtain the information in the jurisdiction where the content is located.  This common-sense approach ensures that personal information is treated equally whether located in the physical or the digital world.   

It’s time for the United States to demonstrate leadership on digital privacy issues. A step in the right direction would be to enact the bipartisan LEADS Act.

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.