If the Government Wants Your Email, It Gets Your Email

http://ow.ly/6Uipa

An article by Christopher Danzig published on the Above the Law website at abovethelaw.com

An article that touches on the fact that the government can often obtain electronically stored information, possibly without any probably cause.  The article points out that it is not surprising that the government obtains electronically stored information, as the article states, "What’s shocking is the ease with which the government gets that information and the secrecy with which it does so. Somehow it’s all based on a law that is older than the Internet. The policy recently came to light when authorities ordered a small Internet provider, as well as Twitter and Google, to turn over information about Jacob Appelbaum, an American who volunteers with WikiLeaks.

How does the U.S. government circumvent basic probable cause and search warrant requirements when it wants electronic information?"

The article addresses the 1986 Electronic Communications Privacy Act, and offers opinions as to why the law is outdated. The ECPA also sets a lower standard for protection than a typical search warrant, "The government must show only “reasonable grounds” that the records would be “relevant and material” to an investigation."  In addition the author states, "A person whose email is inspected this way often never knows a search was conducted. That’s because court orders under the 1986 law are almost always sealed, and the Internet provider is generally prohibited from notifying the customer whose data is searched. By contrast, search warrants are generally delivered to people whose property is being searched."

As the article points out U.S. Senator Patrick Leahy, who drafted the bill even feels that it is outdated, and the major tech companies are also lobbying for a change in this legislation.

P.S. While government entities might not get a break in terms of dealing with eDiscovery rules in civil litigation, they certainly have an ability to obtain electronic content that in criminal litigation (and potentially civil government agency proceedings) would not otherwise be provided to a private party.