Email Searches – Can Congress Stop Them?

By KevinMarcilliat, In Criminal Defense, 0 Comments

Earlier this week, we posted about a cell phone search of a Rhode Island woman’s phone that led to criminal charges being filed against her boyfriend in the death of her 6-year-old son. The Rhode Island legislature has since acted to require police to obtain a search warrant before going through a person’s email, text messages or voice mails stored on a cell phone.

This week, Congress will decide whether protections against warrantless search and seizure of email will be expanded to the whole United States. Any changes to existing law could have a profound impact on protection personal privacy and criminal defense strategy.

Although you may think that your Facebook and Twitter messages, emails and even Googledocs are private, you may be mistaken.

Currently, the 1986 Electronic Communications Privacy Act currently allows a prosecutor to simply subpoena emails rather than go through a judge to request a search warrant for that same data. It allows for law enforcement to search information stored in ‘the cloud’ or on a remote server without the person who thinks that information is private even knowing.

The Senate Judiciary Committee is considering whether to update the ECPA to offer additional legal protections to data stored in the cloud – and essentially to all people who use the internet. The proposed changes include a warrant requirement that would force a judge to be involved in weighing the privacy concerns with the investigatory needs of law enforcement before what is typically thought of as private data is handed over to a prosecutor.

Source: NBC News, “Changes to privacy law would cover the cloud,” November 26, 2012