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The Justice Department may be willing to live with the warrant standard. In fact, prosecutors and FBI agents already get warrants when they want service providers to disclose the contents of email. The U.S. Court of Appeals for the 6th Circuit has held that the Constitution requires a warrant for disclosure of email, and most observers believe the 9th Circuit would rule the same way.
Major companies, including Google Inc., Facebook and Microsoft Corp., insist that investigators present a warrant to compel disclosure of the contents of stored communications.
Ironically, major opposition to reform is coming from federal regulatory agencies, supposed champions of consumer rights. Instead of serving subpoenas on the targets of their investigations, as they always used to do, these agencies want the authority to demand email and other documents from the online service providers to which we’ve entrusted our digital lives. And the agencies want to get this data without the approval of a judge.
The Occupational Safety and Health Administration, the Securities and Exchange Commission, the Federal Trade Commission, and the Consumer Financial Protection Bureau are among the regulatory agencies with subpoena power. In this Internet age, allowing them to compel the service providers that hold so much information about us to disclose that information without judicial authorization could fundamentally change the relationship between the government and its citizens.
Gregory T. Nojeim is a senior counsel at the Center for Democracy and Technology and director of its Project on Freedom, Security and Technology.