ANALYSIS/OPINION:

Lawmen want to know what Americans are up to online. The current rules governing access to Internet-activity records for law enforcement purposes are obsolete, often leaving electronic-communications providers with the dicey task of deciding on which information requests to honor. Existing laws protecting e-privacy desperately need an upgrade.

Google released its latest transparency report last Wednesday, charting an unsettling rise in governmental demands for data on customer Internet searches during the second half of 2012. The Mountain View, Calif.-based company reported it received 21,389 requests for information from July through December 2012, up 136 percent since it started compiling figures in 2009. The search giant reported it complied with 88 percent of the requests and refused to cooperate in 12 percent, concluding they were meritless.

Google reported another disturbing trend: 68 percent of the government queries were in the form of subpoenas, which do not require a judge’s authorization. Only 22 percent of the requests were backed by search warrants obtained through a court, confirming the establishment of probable cause, and 10 percent were accompanied by other types of court orders. Cellphone companies customarily do not produce transparency reports, but responding to queries from Capitol Hill, they reported about 1.3 million cumulative law enforcement requests for customer records in 2011.

The trend of constables bypassing an impartial judicial review when conducting investigations is a by-product of a deficiency in the Electronic Communications Privacy Act, which was written long before the Internet became a popular destination. This 1986 law allows authorities to obtain electronic records that are more than 180 days old without a court warrant. Back before Facebook and the cloud, hard drives were small and extremely expensive, so such records were rarely preserved. Now, however, Americans create trillions of messages and files each year that are stored for long periods on commercial servers, making them enticing targets for investigators.

Google’s report included an understated wake-up call regarding the growing practice of electronic investigations. “We’ve shared figures like this since 2010, because it’s important for people to understand how government actions affect them,” wrote Richard Salgado, legal director for law enforcement and information security.

Privacy advocates point out that badge-holders from local, state and federal agencies are exploiting a legal gray area created by advances in communications technology that lawmakers did not envision in 1986. Today’s youth are growing up in a world where their entire life is preserved in the form of photos, movie clips and messages stored by various Internet companies. Snooping on someone’s full living record ought to require probable cause.

Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, has reported legislation that updates the Electronic Communications Privacy Act to protect Americans in the 21st century by requiring a warrant before cops can peruse someone’s emails or other online documents. Lawmen are there to protect us from wrongdoers, but a judge ought to be the one weighing the merits of requests for e-records. Privacy is worth preserving.

The Washington Times

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