Year: 2015

March 9th, 2015

Behind the Times: Playing Catch-Up with Privacy Law

By: Otis Comorau

Article: Law Firm Founds Project to Fight ‘Revenge Porn,’ The New York Times, Jan. 29, 2015

http://dealbook.nytimes.com/2015/01/29/law-firm-founds-project-to-fight-revenge-porn/

While it is no secret that technological advancement often outpaces legal development, the problem is especially severe in the information privacy context. As a recent New York Times article points out, victims of ‘revenge porn’ – pornography uploaded to the internet (frequently by ex-partners) with the intent to shame and humiliate – have resorted to filing copyright claims against websites displaying the embarrassing photographs or videos.

Indeed, despite the near-universal consensus that uploading this kind of information should, without the consent of those pictured, be strictly prohibited, the law is remarkably unclear and outdated. While some states have recently passed statutes criminalizing revenge porn, the majority have failed to address the issue at all. Moreover, under existing tort doctrine, claims for “intentional infliction of emotional distress” are notoriously difficult to win.

Similarly, at the national level, the Federal Trade Commission is just now beginning to recognize the importance of the issue. It is finally taking a more aggressive stance against the practice. Federal prosecutors are following suit as best they can, as they attempt to charge perpetrators under existing “online stalking” and “unauthorized computer access” laws. Such prosecutions are, however, fairly uncommon.

While these changes are laudable, they are grossly insufficient. Modern, technology-based disputes regarding informational privacy are simply poor fits for traditional civil and criminal laws. In the linked article above, for example, the New York Times points out that victims of revenge porn can only file copyright complaints if 1) they took the photographs and/or videos themselves, and 2) they register the photos and/or videos with the United States Copyright Office. Obviously, these requirements present a huge (and wildly unnecessary) constraint upon information privacy enforcement.

But that is exactly the problem, isn’t it? Copyright laws were never designed to meet the needs of revenge-porn victims. Similarly, charging perpetrators with “online stalking” or “unauthorized computer access” is merely a bait and switch. The issue, as everyone knows, is not really “stalking,” or whether an ex-partner “downloaded a file without permission.” The issue is that, through whatever means, extremely personal information ended up on the internet for everyone to see. This is unacceptable. Everyone has, or should have, a right to keep such information private. Unauthorized publication of that information should be prohibited, end of story.

In short, the status quo is unacceptable. Revenge porn disputes cannot be adequately addressed through the existing tort system, the copyright office, or federal “stalking” charges. On the contrary, they present new, technology-based concerns that do not fit well into existing legal doctrine. The country should therefore follow the lead of the 12 states that criminalized revenge porn last year. It is time to pass a national law outlawing the practice.

March 9th, 2015

Federal Judge Dismisses Challenge of NSA’s Internet Surveillance

By: Nicholas Morales

https://www.eff.org/deeplinks/2015/02/jewel-v-nsa-making-sense-disappointing-decision-over-mass-surveillance

https://www.eff.org/cases/jewel

Last month marked a blow for plaintiffs in Electronic Frontier Foundation’s (EFF) lawsuit against mass surveillance, Jewel v. NSA. EFF filed the class action suit on behalf of AT&T customers whose Internet history is being recorded by the National Security Agency.

The case was filed on September 18, 2008 after various documents were made public by whistleblower and former AT&T employee Mark Klein. Klein’s documents along with testimony by NSA whistleblower William Binney revealed a tap on AT&T’s fiber optic Internet backbone. As details began to emerge, many began to suspect that the NSA was engaging in Upstream collection, a surveillance technique that stores Internet users’ traffic history as it traverses the backbone. In their filing, EFF’s clients alleged that the Upstream collection, as well as the collection of telephone call detail records, violated the First and Fourth Amendments to the Constitution, as well as several other laws related to electronic surveillance.

On February 10, 2015 Judge Jeffrey White of the U.S. District Court for the Northern District of California dismissed the challenge of the constitutionality of the Internet data collection program. In his ruling, Judge White stated that the challenge would require an impermissible disclosure of secret information that could jeopardize national security and also ruled that the plaintiffs did not have standing to pursue the claims. The court also found that the plaintiffs lacked proper standing. Judge White stated that because plaintiffs could not prove that the surveillance occurred as they alleged, they did not have the standing to challenge the program’s constitutionality.

EFF criticized the ruling for allowing state secrets to “trump the judicial process” and vowed to continue its case against the NSA. It should be noted that Judge White’s ruling did not decide the legality of the NSA’s Internet surveillance practices, nor does the ruling apply to the challenge of the constitutionality of the NSA’s surveillance of telephone records.

March 5th, 2015

Future of NSA Phone Surveillance Program Remains Unclear

By: Matt Daly-Grafstein

http://www.newsmax.com/US/nsa-megadata-phone-records/2015/03/03/id/627966/

http://www.defenseone.com/politics/2015/03/clock-ticking-congress-produce-nsa-surveillance-reform/106653/

Last week the Foreign Intelligence Surveillance Court (FISC) extended a mandate for the operation of the NSA’s phone surveillance program until June 1st after receiving a specific request from the Obama administration. At issue remains certain provisions of the Patriot Act, including section 215 which grants the NSA extremely broad access to a variety of civilian records under the Foreign Intelligence Surveillance Act (FISA). If the June 1st deadline passes and Congress takes no further action, then the NSA will ostensibly lose the legal authority to continue mining American phone records.

Currently it appears that Congress has no plans in place to allow the continuation of the NSA’s operations. Several bills have been previously introduced to the previous Congress in an attempt to reform how the NSA goes about its collection of American phone records but none were ultimately passed. The USA Freedom Act, introduced this past November, by Dem. Sen. Patrick Leahy, came the closest but fell a mere two votes shorts of advancing. There are no bills that have been introduced in the current Congress that address the issue.

Critics are worried that the lack of action by Congress may be evidence that a last-minute bill will be rushed through that will grant the same broad powers that were given under the much maligned Patriot Act. The same type of debate surrounding the failed USA Freedom Act that led many to believe that it reflected a true bipartisan effort may not be possible given the less than 100 days until the expiration of the current laws. This past year Obama had proposed that data should remain with telephone companies and that the government should only be able to access data through specific individual court orders, a proposal that may have more favorable support from critics of the current government surveillance programs. No legislation to date however has incorporated this suggestion.

The short window remaining to pass new legislation may also mean that Congress simply lets Section 215 and its related provisions expire. This would legally end the ability for the NSA to continue its current efforts in gathering bulk phone data. While it’s unclear the true efficacy of the program given the unwillingness of the NSA to share detailed data about its operations it’s enough for some in Congress and the intelligence community to worry that the vacuum created may mean that the USA will be less effective in preventing future terrorist operations within the country. In any case, we should know for certain the future of the NSA surveillance program within the next few months.

 March 5th, 2015

To Beep or Not to Beep: The Ups and Downs of Smartphone Privacy

 By Eliza Cohen

 http://www.economist.com/news/leaders/21645180-smartphone-ubiquitous-addictive-and-transformative-planet-phones

http://www.economist.com/news/briefing/21645130-watch-out-hackersand-spooks-spy-your-pocket

On February 19, the Intercept revealed that spies at GCHQ (Britain’s equivalent to the NSA) had stolen hundreds of thousands of encryption keys coded into Gemalto SIM cards in order to access conversations and data. The story was based on documents that were leaked by Edward Snowden, the government contractor who began to publicly disclose classified NSA documents in June 2013.

On the heels of this latest report, The Economist has published a two-story briefing in its issue of February 28. In “Smartphone Security: The Spy in Your Pocket,” the magazine paints a harrowing picture of cellular security, described as “mostly an afterthought in a booming industry that has always seen market share as the priority.” Organizations such as the NSA have entire departments whose job it is to breach cell phone encryptions and other protective mechanisms. Criminal malware is described as an ever-growing industry, and an alarming number of apps are guilty of transmitting unencrypted data that may be read at will. Though industry players and consumers are cognizant of data protection issues, The Economist writes that “there is still a lot for the industry and its users to learn.”

In its second briefing, “Planet of the Smartphones,” The Economist plays its own devil’s advocate. The magazine enumerates three benefits that militate against the threat to privacy posed by smartphones. First, “the same phones that allow governments to spy on their citizens also record the brutality of officials and spread information and dissenting opinions.” Thus, the magazine writes that smartphones empower the ordinary individual to challenge government authoritarianism. Second, the same personal data that companies may seek to exploit can also used to advance the public good. Smartphones are described as “digital census-takers” that create an unprecedentedly detailed view of society in real time. This data may be used for a variety of social purposes, including crime prevention and the monitoring of global epidemics. Third, The Economist holds that smartphones provide immense economic benefit. Smartphones have the potential to remake entire industries at lightning speed. The phone itself is the platform, which is conducive to the development of cheap startups (like WhatsApp and Uber) that may one day be valued in the millions or billions. Though cell phones present important privacy considerations, The Economist opines that society must adapt to these new realities, and develop norms and methods of accountability for smartphone use.

The Economist is right about one thing: the smartphone has changed the world, and is an invaluable source of economic and social good. However, by focusing on the benefits that accrue from smartphone usage, the magazine is adopting an oversimplified approach to information privacy. The mere fact that cellular data may be used to advance the public good is not a justification for the breach of privacy on a universal scale. In Riley v. California, the court states: “the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of protection.” Smartphones may be used to combat authoritarian regimes, to aggregate useful data, and to remake entire industries — but not at the expense of global privacy. Widespread government spying and corporate data-mining are not necessary corollaries of cell phone usage. Though data monitoring may be necessary in certain instances for the purposes of national security, these usages should be circumscribed, and governments must be held accountable for their actions to the greatest extent possible. In United States v. Warshak, the court held that “the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will whither and perish.” Since the NSA wiretapping scandal first came to light, it has become glaringly apparent that the age of “reasonable” privacy is over, and that we are more in need of Fourth Amendment protections now than ever before. Yes, The Economist is correct in stating that cell phones are “ubiquitous, addictive and transformative” — but ultimately, at what cost?

February 27, 2015

Gemalto hacking shows that NSA and GCHQ are not shy about targeting market leaders to weaken phone encryption security

https://firstlook.org/theintercept/2015/02/19/great-sim-heist/

http://www.gemalto.com/press/Pages/Gemalto-presents-the-findings-of-its-investigations-into-the-alleged-hacking-of-SIM-card-encryption-keys.aspx

https://firstlook.org/theintercept/2015/02/25/gemalto-doesnt-know-doesnt-know/

http://www.theregister.co.uk/2015/02/20/gemalto_sim_surveillance_fallout/

By: Edwin Mok

On February 19, 2015, The Intercept reported that in 2010-2011 the American and British spy agencies had hacked the world’s largest manufacturer of SIM cards and stolen encryption keys, potentially allowing intelligence agencies to “monitor mobile communications without seeking or receiving approval from telecom companies and foreign governments”. The report was based on top-secret documents provided by NSA whistleblower Edward Snowden. According to a 2010 document, the NSA and the Government Communications Headquarters (GCHQ) – the NSA’s British counterpart – conducted a joint operation targeting Gemalto, which makes chips used in mobile phones and credit cards, and whose clients include “AT&T, T-Mobile, Verizon, Sprint and some 450 wireless network providers around the world”.

Six days later, on February 25, 2015, Gemalto released a statement confirming that “in 2010 and 2011, [the company] detected two particularly sophisticated intrusions” upon their internal computer networks. It continues: “At the time we were unable to identify the perpetrators but we now think that they could be related to the NSA and GCHQ operation”. However, Gemalto asserts that the intrusions “only breached its office networks and could not have resulted in a massive theft of SIM encryption keys”. It speculates that its dominance in the SIM card market may have made it the “target of choice for the intelligence services in order to reach the highest number of mobile phones”.

SIM cards store information used to identify and authenticate subscribers on a telecommunications network. They are also used to store information such as contacts, text messages, and phone numbers. Domestically, the FBI and other agencies can force U.S.-based telecommunications companies to give up such information through court orders. However, this sort of data collection is much more difficult at the international level, because foreign governments and companies will not typically allow the NSA or other intelligence agencies to access the communications on their networks. Possession of the encryption keys would, according the The Intercept article, give the NSA “the ability to intercept and decrypt communications without alerting the wireless network provider, the foreign government or the individual user that they have been targeted”.

Although Gemalto claims that no encryption keys were stolen – and some experts have expressed serious doubts as to the thoroughness of their investigation – the fact that the hacking attempt occurred is significant. It shows that the NSA and the GCHQ have in the recent past attempted to seriously compromise phone security on a vast and global scale. And it shows that they are not shy about targeting the biggest players in the market. It is notable that Gemalto is headquartered in Amsterdam, that is, not within any country part of the “Five Eyes” intelligence alliance (comprised of Australia, Canada, New Zealand, the U.K., and the U.S.). It seems, at the very least, the NSA and the GCHQ view any company based outside of those five countries as fair game.

There is an additional important wrinkle to this story. The article by The Intercept resulted in a $470 million loss to Gemalto’s stock price. While that stock price has since rebounded (helped no doubt by Gemalto’s assurances that no encryption keys were stolen), this situation raises the specter of state-sanctioned electronic espionage as an economic, investment, and insurance risk for international companies operating in the telecommunications space. It is one thing when such attacks purportedly originate from China or North Korea. It’s quite another to learn that such attacks have been occurring between supposedly friendly nations. And it begs the question: who else has been in the NSA’s crosshairs?

The message is clear. If you are an international company with information viewed as strategic to the NSA or other spy agencies, you’re a potential target. Indeed, they may already have targeted you.

February 26th, 2015

Do we have information privacy at the era of smartphone?”

By: Ying Zhang, L.L.M

http://en.miui.com/thread-67462-1-1.html

In Riley v. California, the Supreme Court found that “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” The Supreme Court pointed out that one of the most distinguishing features of modern cell phone is their immense storage capacity; the storage capacity of cell phones has several interrelated consequences for privacy. Further, the Supreme Courts believed that the data stored on a cell phone is not only distinguished from physical records by quantity, certain types of data are also qualitative different. For example, an Internet search and browsing history could reveal an individual’s private interest or concerns; historic location information can reconstruct someone’s specific movement; mobile application software on a cell phone offers a range of tools for managing detailed information about all aspects of a person’s life. The Supreme Court held that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house…”. Based on the above, among others, the Supreme Court finally determined that the police must get a warrant before searching a cell phone seized incident to an arrest.

In the above ruling, the Supreme Court recognizes that the decision will bring an impact on the ability of law enforcement to combat crime, but why does the Supreme Court still make the ruling? Is the Supreme Court proactive in its ruling or did the Court exaggerate the influence of cell p hone on our daily life? Let’s see a related data in relation cell phone from China.

The linked article below is about a transcript of the interview with Jun LEI by Russell Flannery of Forbes Shanghai. Jun LEI is a founder and the CEO of the biggest Chinese cell phone manufacturer XIAO MI. LEI was recently crowned as Forbes’ Business Man of The Year in Asia. In accordance with the interview, we may conclude that the Supreme Court does not overstate impact of cell phone to our life; moreover, our information privacy is highly threatened by the data that we believe are stored in our cell phone even if we hold our cell phone with us 24 hours a day.

1. A cell phone itself does not only store large quantity of information, since a cell phone now is able to connect to Internet any time and places, a cell phone may store more and more information on various types of “big data cloud services” from time to time. LEI mentioned that only the cell phones that are manufactured and sold by XIAO MI will uploads 380 Terabytes content to the cloud storage that is provided by XIAO MI. One Terabytes equals 1024 Gigabytes; if data of 380 Terabytes is all about pictures in cellphone phones, this implies that users of XIAO MI cell phones uploads over 0.1 billion pieces of pictures every day.
2. In addition to the quantity of the information that is stored in a cell phone, XIAO MI cell phones are also connected with TC, Box, wearable devices, router, and smart home devices; this decides a cell phone can collect and store various types of information. Therefore, through the cell phones it sold, XIAO MI acquires massive data not only phone numbers and communication log, but also other valuable and sensitive information, such as health records.

3. Cell phone service providers and cloud storage service providers plan to make profits upon acquiring and controlling these data. LEI predicted that XIAO MI will have more than 1000 Petabytes of data after year 2015 which will need more servers, machines, IDCs, bandwidth. In accordance with LEI, 1 Petabyte storage services (1 Petabyte amounts to 1000 Terabytes) requires cost of RMB 3 million; 1000 Petabytes will cost XIAO MI around RMB 3 billion. Once cell phone users store their data, for free, on the cloud storages that are provided by XIAO MI at its own expenses, XIAO MI will ask every user’s permit to read very the user’s data. Once a user permits, XIAO MI can use machines to read and analyze the data and make many commercial decisions. For example, XIAO MI may determine whether it can give a user a loan. If the data reveals that a user has a stable income, pay your credit card debts on time, never goes out of New York city, then XIAO MI might decide to hire the user and lend the user one hundred thousand RMB without “fear” that the user will leave, because XIAO MI owns all data of the user.

After all, LEI believes that mobile networking is still in its explosive growth phase and will continue for 5 to10 years. Smartphones will be the center of the world. Everything is within our control via a smart phone, house’s air, water quality, and safety; this also means that others can use our smart phone to do so too

February 26th, 2015

Department of Justice Warrant Requirement Proposed Amendment Concerning Electronic Surveillance in Anonymous Computer Sources Raises Serious Fourth Amendment Concerns

By: Breta Olsen

http://www.slate.com/blogs/future_tense/2015/02/19/google_says_proposed_doj_rule_41_revision_is_monumental_fourth_amendment.html

http://justsecurity.org/15018/justice-department-proposal-massive-expand-fbi-extraterritorial-surveillance/

https://www.aclu.org/blog/national-security/government-pursuit-less-secure-internet

The DOJ has proposed an amendment to Rule 41 of Federal Criminal Procedure on a proposed amendment that would allow magistrate judges to issue search warrants outside of their jurisdiction that authorize the “use [of] remote access to search electronic storage media and to seize or copy electronically stored information” when the location of the computer source is unknown. According to the DOJ, this amendment will ensure that FBI searches of digital data do not have their warrants precluded due to lack of venue when technology is used to disguise a computer’s geographic location.

While the Department of Justice insists that this is a small tweak to an existing rule that does not expand the power of the FBI to search, organizations as varied as Google, the ACLU, Reporter Committee on Freedom of the Press and the Electronic Frontier Freedom all cautioned the Judicial Conference Advisory Committee on Criminal Rules to reject the proposal and advised that, if this change should be made, Congress is the appropriate venue rather than the rule-making process due to fourth amendment concerns.

According to the ACLU, the sample search warrants submitted to the committee indicate that the warrants would be used to implement network investigative techniques (NIT), which involves the hacking of a device and the installation of malware on the targeted computers. These searches may well constitute an unreasonable search under the fourth amendment given their destructive nature, unpredictability, and ability to affect countless non-targeted computers.

Google points out that the wording of the amendment is sufficiently vague to raise further fourth amendment concerns. For example, the sample warrants make no attempt to describe what “storage media” will be searched, giving seemingly unlimited access, which is disturbing because NIT makes it possible for the government to take control of targeted computers and access data stored locally, on a network drive, or in the cloud. This raises serious particularity concerns under the fourth amendment. With respect to the scope of the warrants, Google points out that there are no statements on the sample warrants about what type of “storage media” will be searched or how the government will avoid implicating non-targeted computers in the search as it tracks an anonymous actor. Finally, Google points out that NIT techniques have the ability to access a computer’s microphone and camera remotely. To the extent that any of these searches employ this method, and either activate these devices or collect information in real time from them, the heightened protections of Title III would apply, and the government has not addressed these concerns in their proposal.

Public comments before the Committee closed on February 17 and in the next few weeks, the Judicial Conference Advisory Committee on Criminal Rules will make a decision about the preliminary proposal.

February 26th, 2015

U.S. v. Winn

By: Siyuan Wang

https://s3.amazonaws.com/s3.documentcloud.org/documents/1667465/sd-illinois-cellphone-20150209.pdf

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/02/23/court-invalidates-cell-phone-warrant-as-overbroad/

In this case, a man named Winn (the defendant) had been seen using his cell phone to photograph or videotape a group of minors in their swimsuits while rubbing his genitals. The government asked for and obtained a warrant to search Winn’s phone for all evidence of public indecency stored inside it. The officer used the Cellebrite UFED Touch machine to extract data from the cell phone, which included “two calendar events, a forty-four item call log, twenty-three contacts, eighty text messages, 312 images, and twenty-five videos.” No evidence of public indecency was obtained, but some of the data was evidence of child pornography. Winn seeks to suppress the evidence, claiming that the warrant was overbroad. The court agreed with defendant on this issue and reasoned:

The warrant authorized the seizure of “any or all files” contained on the cell phone and its memory card that “constitute[d] evidence of the offense of [Public Indecency 720 ILCS 5/11–30],” including, but not limited to, the calendar, phonebook, contacts, SMS messages, MMS messages, emails, pictures, videos, images, ringtones, audio files, all call logs, installed application data, GPS information, WIFI information, internet history and usage, any system files, and any delated data (Docs.22–2, 22–3).

The major, overriding problem with the description of the object of the search—“any or all files”—is that the police did not have probable cause to believe that everything on the phone was evidence of the crime of public indecency. The description was a template used by the St. Clair County State’s Attorney’s Office for all cell phone searches. Templates are, of course, fine to use as a starting point. But they must be tailored to the facts of each case. This particular template authorized the seizure of virtually every piece of data that could conceivably be found on the phone. The Supreme Court put the scope of such a wholesale seizure in perspective by explaining that it “would typically expose the government to far more than the most exhaustive search of a house.” Riley v. California, 134 S.Ct. 2473, 2491 (2014) (emphasis in original). Obviously, the police will not have probable cause to search through and seize such an expansive array of data every time they search a cell phone.

The court went on to explain what a specific warrant looks like:

the warrant could have described the location of the incident as well as the subjects of the images—children at a swimming pool, or more specifically young girls in swimsuits at the Mascoutah Public Pool. See, e.g., Mann, 592 F.3d at 780–81 (where warrant authorized police to search for “images of women in locker rooms or other private areas” for evidence of voyeurism).

This reasoning demonstrates court’s concerns of aggregating data stored in cell phones and how it influences the scope of warrant. As recognized in Riley, cell phone is different in the sense of type and range of data contained. The rationale is that due to the large storage capacity, the expectation of privacy is heightened in such context.

This is an easy case because the law enforcement used a template warrant, which was “patently” overbroad by nature. The court took a very restricted approach by saying that only photos and videos related to public indecency crime should be searched since only these two types of data were relevant. Along this line of reasoning, we need to first match the possible form of evidence with the crime feature in order to determine the scope of a warrant. Then problem of how extensive the search need to be in accordance with the suspected crime will arise.

Panel 9

February 23rd, 2015

By: Alexia J Boyarsky

Proposed Congressional Reform to Government Access to Emails

http://thehill.com/policy/technology/230974-leahy-lee-ready-email-privacy-bill

http://ivn.us/2015/02/16/240-u-s-reps-sign-bill-protecting-private-online-communications/

http://www.zdnet.com/article/ecpa-reform-will-kill-warrantless-email-searches/

New bi-partisan Congressional bill was introduced this week, resembling a similar bill from last year, that would require the government to get a warrant prior to obtaining access to any emails. As current law stands under the Electronic Communications Privacy Act from 1986, the government only needs a subpoena for old emails (older than 180 days) or for read emails. These provisions made some limited sense when the bill was enacted because storage space was expensive and most people did not keep their emails for that long. However, in the modern day, the Congressmen argue that emails have become so pervasive and so private that more protections are vital.

Currently, 240 cosponsors have signed onto the deal, which makes it possible that it will pass Congress. After the Patriot Act, the most vocal opposition to government searches of emails was silenced, however, in the wake of news of the National Security Agency surveillance leaks, there has been more support throughout Congress for laws that limit the government’s abilities to search citizens’ emails. These reintroduced bills will be voted on either this month or next, and barring a comparable bureaucratic stalemate such as what killed the bill last year, they are likely to pass.

Major Tech Companies Take Sides in Battle Over Update To ECPA

By: Matthew Shore

Panel 9

Link: http://www.law360.com/articles/614439/google-others-renew-push-for-digital-privacy-law-reform

From industry to civil rights groups, many sides are now lining up against the government in the fight to bolster the Electronic Communications Privacy Act. Google, Twitter and other tech companies recently sent a letter to House Judiciary Committee Chairman Robert Goodlatte and Ranking Member John Conyers, asking that Congress give consideration to the Email Privacy Act. The act, which would be an update to the Electronic Communications Privacy Act, “would make it clear that, excepting emergencies, the government needs a warrant to compel a service provider to disclose the content of emails, texts or other private user material stored in the cloud by the service provider.”

In the Sixth Circuit opinion United States v. Warshak, Judge Boggs stated that “[t]he government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.” This seems to line up with the goal of the Email Privacy Act. However, supporters note that there have also been conflicting rulings, which has left both the government and service providers in an uncertain position.

While service providers may be looking for guidance in how to act, and protection of their customers, the government’s interest is in protecting its citizens. Advocates for digital privacy, in pushing for the Act, can point to the extent of our lives that now exist in our emails, texts and information in the cloud. Government actors have an argument that this is the very reason that the government needs the ability to access this information easily. Much of the planning by terrorists occurs outside of the old methods of surveillance and the government must be able to act quickly, if need be.