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.         

Occupy Wall Street Tweets May Be Subject to Subpoena

While the Occupy Wall Street protests have cooled down the past several months, the legal issues involved with them have heated up. According to the Wall Street Journal, a Manhattan judge recently ruled that Twitter has to turn over several months of an Occupy Wall Street protester’s tweets. The tweets may be utilized against the protestor at trial.

In April, the judge in the Occupy Wall Street protestor's case ruled that the protestor does not have the right to quash a subpoena for public tweets. At that time, I stated that, "I generally agree with the main point of this decision (that the protestor doesn't have the right to quash the subpoena) that public Tweets are fair game,"

If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.

To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Supreme Court Must Uphold 4th Amendment Protections in the Social Media Age

This week the Supreme Court will hear arguments in United States v. Jones regarding whether installing a GPS device on a suspect's car without a warrant is constitutional. This case may have far reaching ramifications in the Social Media Age because it may create the foundation to determine whether electronic data in various platforms may be protected by the 4th Amendment.

On April 29, 2010 and July 25, 2010, I discussed how Congress may pass the Social Media Privacy Protection Act. This act may be able to protect our electronic content from unreasonable searches and seizures in the Social Media Age. Last month, I discussed how California Governor Jerry Brown recently vetoed legislation that would have required a warrant to search the cell phone of a person who has been arrested in California. If the Supreme Court does not set limits on how the police may deploy electronic tracking devices I would not be surprised if Congress steps in to address this matter.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.