The Government Cannot Force E-mail Companies to Copy and Save Your Account ‘Just in Case’

Paper letters have a final resting stop — whomever they are addressed to. From a practical standpoint, and a legal one, that feature of regular mail made understanding and applying privacy protections relatively straightforward. But as our communication technologies have changed, courts have struggled to grant a similar degree of privacy protection to communications in the modern era.

Digital communications present new problems. For example, your email does not live in your letterbox but in an online repository operated by a private company. And as digital communications like email and social media become more ubiquitous in society, investigators increasingly rely on them as important sources of evidence.

Making sure that email gets proper Fourth Amendment protection is one of the ACLU’s priorities. So on Tuesday, we filed a friend-of-the-court brief in the Ninth Circuit Court of Appeals that calls attention to a little-known statute that appears to be giving law enforcement an unconstitutional loophole to exploit in its pursuit of digital evidence. The case involves the warrantless use of law enforcement preservation demands to force email providers to copy and keep an individual’s private communications for up to half a year — without ever asking a judge or meeting a standard of suspicion.

The Fourth Amendment protects our rights in our belongings from arbitrary police power. Before law enforcement can seize our “papers” and “effects,” it must obtain a warrant from a neutral magistrate. In this case, law enforcement unilaterally issued a preservation demand and then took nine months to follow up with a warrant seeking the preserved emails. This prolonged, warrantless seizure is typical of a growing nationwide practice: one where investigators regularly issue secret demands to preserve individuals’ private account data just in case they decide to return with a court order later.

This case highlights how the government has been exploiting an under-examined section of the Stored Communications Act that creates a gaping loophole to Fourth Amendment protections. Section 2703(f) allows the government to force email providers and social media companies to create and store copies of user accounts for a statutory period of 90 to 180 days — without a warrant or just cause.

Unlike the postal service, which merely transmits mail from one address to another, email and social media providers create instant, exact copies of all transmitted messages. Section 2703(f) takes advantage of the stored nature of digital communications by requiring providers to actively copy and store communications and other account data, interfering with the owner’s privacy and property rights and creating a database of private information kept just in case law enforcement decides to come back with a warrant later. 

The ostensible purpose of section 2703(f) is to assure investigators that relevant criminal evidence will not be destroyed before they have time to get a warrant. Depending on the facts of a given case, this is a legitimate concern. To address this concern, the SCA states that a “provider . . . shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.”  This language appears to mean that every section 2703(f) preservation demand should be, at the very least, tied to the government’s ongoing effort to obtain a warrant to seize and search account information.

This is not the case in practice.

Section 2703(f) permits warrantless seizure of private account data as it allows investigators to force providers to freeze copies of entire accounts wholesale, without describing what specific information is relevant to their investigation. Providers regularly receive tens to hundreds of thousands of 2703(f) demands without ever seeing a warrant.

In the second half of 2018, Facebook received 57,000 preservation demands but only about 34,000 forms of legal process to seize and search account information. Even when the government follows up with a warrant, it often takes much longer than 90 days to do so. Investigators regularly use the statute to force providers to copy and preserve tens or hundreds of thousands of private online accounts just in case a need for the information arises later in the course of an investigation.

The Fourth Amendment accounts for the problem Congress apparently tried to solve with section 2703(f) — that the government might need to access accounts before a user or provider is able to delete incriminating information therein. There is an exception to the warrant requirement of the Fourth Amendment in exigent circumstances. Under this exception, a warrantless seizure can be justified if there is both probable cause and a reasonable likelihood that the evidence will be destroyed while the government is busy applying for a warrant.

But this justification simply does not hold up under section 2703(f). The statute doesn’t require probable cause or any factual basis for the preservation demand. When law enforcement takes longer than 90 days to get a warrant, the claim of exigency does not hold up. It especially does not hold up when law enforcement never returns with a warrant at all.

The Fourth Amendment balances our rights in our communications online and the goals of efficient law enforcement. When it comes to section 2703(f) of the SCA, however, the government undermines that balance by avoiding the requirements of the Fourth Amendment altogether. To seize and search our digital accounts outside an exigent circumstance, whether it takes nine hours or 90 days, the government must get a warrant first.

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Ms. Gloria Anasyrma

Just except that anything transmitted electronically is not private. If you want privacy in your electronic communications use codes and ciphers.

Anonymous

The problem is it will soon be virtually impossible to earn an income and still have privacy rights. Today there is a complete map of your everyday travels, cable or satellite TV, online books, online searches, political donations, charity donations, clubs you belong to, etc. If the police, FBI and other agencies honored their Oath of Office we would have less to worry about but most have contempt for the U.S. Constitution. The greatest danger is not overt arrest but covert abuses. This is not theory, there is a long track record of abuses. For example: female FBI agents masqueraded as mistresses calling up Martin Luther King's wife trying to destroy his marriage, there was no crime in the equation. The FBI was trying to subvert King for wanting equal rights for African-Americans. These were felony crimes by the way. This same agency culture exists with far more dangerous technology. Since these punishments are covert, it robs it's targets of legal standing in court or reporting these abuses to proper government-watchdogs. It's far worse than most people realize.

Anonymous

The Executive Branch agencies (federal, state, local) can't police Executive Branch agencies. The Judicial Branch can only do that in the current model. Maybe the Judicial Branch needs way more funding and authority to enforce the "supreme law of the land" - the U.S. Constitution. The current oversight model doesn't work. Internal Affairs officials, IG's, GAO, etc report to the agency leaders most culpable for violating our constitutional rights. They work for the ones driving the law breaking!

Anonymous

Good point. Another one is, Trump has a track record of excessive and unrepentant lying. So to your point, what good is IA, IG, GAO, or ethics reviews when the president just makes up some non-facts -- like for instance Trump's lie that President Obama was seeking war with North Korea -- and there is absolute no recourse. Seems like Trump and Evangelicals are leading the way to bad behavior and dissolution of America's moral standard for truth.

Anonymous

There also needs to federal anti-retaliation legislation to protect private companies from government retaliation for requiring judicial warrants. About 6 months before 9/11 Qwest Communications CEO, Joseph Nacchio, claims he was extorted by the U.S. Department of Justice for requiring a warrant from a judge. Another arm of the DOJ indicted the CEO and sent him to prison for about 3 years. After being released from federal prison, the CEO claims he went to prison for refusing to be an accessory to the felony crime of warrantless wiretapping. We vitally need a “Stasi-Law” (anti-retaliation Law) protecting companies from rogue agencies.

Anonymous

Welcome to the 21st Century: it’s suspicious to carry or pay with cash. It’s suspicious to turn off your cell phone. It’s suspicious to read paper books or paper newspapers. If you have large sums of cash, until yesterday’s U.S. Supreme Court ruling, cops can just take it, without even a trial or conviction. Simultaneously, the government can’t protect our electronic informations from hackers but it’s suspicious not to use it! Thank God for the ACLU!

Anonymous

Electronic records are stored 3-8 years minimum. That means even if you had a law abiding president today, the next president could still get those records. So a president could target members of Black Lives Matters, Tea Party, etc. and punish you for legal speech in 2011 or earlier. The government’s goal is to save these records for forever, so your kids face even a greater danger in the future.

Arthur Spitzer,...

Well, you know, the ACLU and other lawyers representing plaintiffs regularly send evidence preservation demands to potential defendants and third parties many months before filing lawsuits, and sometimes never file the lawsuits at all. Is that also wrong?

Anonymous

Vitally important Writ of Mandamus: the ACLU attorneys need to clearly outlaw "Zersetzung" tactics by the FBI and American intelligence agencies. American agencies should never embrace tactics used by Nazis and communists. The U.S. Supreme Court needs to outlaw these unAmerican practices.

Anonymous

There’s another issue that most officials would probably agree with and was also confirmed by the 9/11 Commission. Most police, intel or national security officials are good people, with good intentions and very intelligent, but the “system” produces a incompetent and inaccurate result. The reason the system is so flawed is it depends largely on “assumptions” and “guilt-by-association” instead of hard facts. Investigators many times build a false foundation then build upon that flawed theory, apparently never questioning or challenging those assumptions. For example: after 9/11 investigators assumed someone was a legitimate suspect and then proceeded to implement counter-measures based on that falsehood. When they find out the original theory was totally wrong, they still keep the resulting counter-measures and instead of admitting mistakes investigate and destroy the innocent person for life. This is the danger to unchecked surveillance combined with excessive secrecy. There is also little attention paid to the fact that the FBI and other agencies had all of the intelligence necessary to prevent some or all of the 9/11 attacks. One reason they dropped the ball was too much information, too much bureaucracy and not responding to their own FBI field offices. Congress responded by making the bureaucracy larger and overwhelming them with more information than could be analyzed. One could argue America would be much safer with smaller agencies that focused on hard evidence instead of trolling Facebook and social media.

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