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Google: Government creating 'distractions' in email privacy debate

By Mario Trujillo

Google and other tech advocates accused federal agencies Wednesday of creating "distractions" during the years-long debate on updating an email privacy law from the 1980s.

"We certainly appreciate the concerns that have been raised in the rather long debate about this provision, but I'm afraid these are really just distractions," said Richard Salgado, Google's director of law enforcement and information security.

There is widespread support in Congress to close a loophole in the Electronic Communications Privacy Act (ECPA) that lets the government use a subpoena, rather than a warrant, to force Google and other service providers to hand over customers' electronic communications if they are more than 180 days old.

The Justice Department, Securities and Exchange Commission (SEC) and Federal Trade Commission (FTC) expressed continued opposition to the bill on Wednesday.

The agencies said they are not currently using the authority under the decades-old law to force companies to hand over customer emails without a warrant. They even testified that old emails should not be treated differently under the law than newly sent ones.

But they are asking for concessions that would create a new warrant-like court order to allow them to obtain email information during civil, rather than criminal, cases. Warrants can currently only be obtained with probable cause of a criminal violation.

Chris Calabrese, the vice president of policy at the Center for Democracy & Technology, argued that the new court order proposed by agencies would be a "dramatic expansion of their authority to get at ordinary citizens' inboxes."

He called it a "huge power grab from civil agencies no matter how they frame it."

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said the committee's work is in the early stages and offered no timeline for a markup. The bill has advanced out of committee in years past under Democratic control, but Grassley has expressed openness to the agencies' position.

The 1986 law is not only outdated, according to reform advocates, it is also unconstitutional.

They point to a 2010 court ruling - United States v. Warshak - that found government demands for tech companies to turn over customer emails without a warrant is a violation of the Fourth Amendment.

"What we have on our books right now is an unconstitutional provision. And we could fix that. And we have a very elegant way in the current bill that takes care of this," Google's Salgado said.

The Justice Department's Elana Tyrangiel said that after the 2010 case, it currently relies on warrants rather than ECPA subpoenas when compelling providers to hand over emails. Similarly, Daniel Salsburg of the FTC said his agency did not use ECPA subpoenas before or after the court decision.

Andrew Ceresney of the SEC said his agency also refrains from using ECPA subpoenas out of an "excess of caution, and I think in deference to the reform discussions that have been ongoing in Congress."

He added, though, that the court case does not outright bar the agency from using the authority "to obtain emails through an administrative subpoena."

"There is a long line of Supreme Court and other circuit cases that say that an administrative subpoena with notice to a subscriber complies with the Fourth Amendment," he said.

The law firm of Hallett, Zerillo, and Whipple, P.A. are Maine attorneys representing clients who have been seriously injured, accused of crimes in state and federal court, have business litigation needs or family law and divorce cases. Various attorneys in the firm have been locally and nationally recognized for their achievements, including admission into New England Super Lawyers, the Client's Choice Award from AVVO.com, the President's Award from the Maine Association of Criminal Defense Lawyers, and membership in the selective National Academy of Family Lawyers. For more information on the firm, please visit www.HZWlaw.com.

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