Tyrangiel also said that Congress should consider making it easier for law enforcement to see who is emailing or otherwise sending online messages to whom. She said existing law requires law enforcement to obtain a warrant or court order to access that information for emails, whereas only a subpoena is needed to obtain telephone records.
“While law enforcement can obtain records of calls made to and from a particular phone using a subpoena, the same officer can only obtain `to' and `from' addressing information associated with email using a court order or a warrant, both of which are only available in criminal investigations,” she said.
The law has been invaluable for investigators in child pornography cases and to develop probable cause to obtain warrants against suspected criminals, said Richard Littlehale, head of a high-tech investigative unit with the Tennessee Bureau of Investigation. He said the privacy problem has been overstated and that the law should be changed to compel service providers to retain every text message and email in case law enforcement needs access to it later.
“The truth is that no one has put forward any evidence of pervasive law enforcement abuse of ECPA provisions,” Littlehale told the House panel.
Greg Nojeim, senior counsel at the Center for Democracy and Technology, said these proposals “run in the opposite direction” of where Congress is headed and are unlikely to gain traction. Allowing warrantless review of email logs in particular, he said, “removes a judicial check on a very intrusive surveillance power. Records about who you communicate with can almost be more revealing than the content of your communications.”
Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, agreed and said he thinks the Justice Department changed its position on warrantless email snooping because it had little choice.
“I feel like they were the last people in the world to come to the conclusion,” he said. “DOJ has very little to lose coming around to saying, `OK, we're going to require a search warrant.“'
The Justice Department declined to comment.