Outdated Electronic Privacy Laws Allow Police to Access Sensitive Data Without a Warrant

December 9, 2013

FOR IMMEDIATE RELEASE

CONTACT: 212-549-2666, media@aclu.org

WASHINGTON – Law enforcement requests for a variety of cellphone users’ data continued to surge in 2012, according to responses from the nation’s major cellphone carriers prompted by inquiries from Sen. Edward Markey (D-Mass.).

Last year alone, AT&T and T-Mobile documented 600,000 requests for customer information made by local, state, and federal law enforcement. Verizon, in its response to Sen. Markey’s request, said that police requests for customers’ call records have approximately doubled over the last five years. Often, no warrant is required to compel cellphone carriers to turn over their customers’ information to police.

"Have no doubt, police see our mobile devices as the go-to source for information, likely in part because of the lack of privacy protections afforded by the law," said Christopher Calabrese, legislative counsel at the ACLU’s Washington Legislative Office. "Our mobile devices quite literally store our most intimate thoughts as well as the details of our personal lives. The idea that police can obtain such a rich treasure trove of data about any one of us without appropriate judicial oversight should send shivers down our spines."

The companies’ responses to Sen. Markey’s office also show that law enforcement conducts real-time surveillance of targets' web browsing habits. According to AT&T’s letter, the company allows law enforcement to do "real time web browsing surveillance." Police are also requesting "tower dumps," whereby cellphone companies give law enforcement the records of all cellphone users who have connected to a particular cellphone tower in a given time range.

"There is an easy fix to part of this problem," said Calabrese. "President Obama and members of Congress should pass legislation that updates our outdated privacy laws by requiring law enforcement to get a probable cause warrant before service providers disclose the contents of our electronic communications to the government. Anything less is unnecessarily invasive and un-American."

Currently there are many proposals in Congress to reform the Electronic Communications Privacy Act (ECPA). Passed in 1986 before widespread usage of email or the existence of Internet-connected mobile devices, ECPA allows law enforcement agencies to obtain electronic communications content older than 180 days—including text messages—without a warrant. The ACLU supports bipartisan ECPA reform legislation introduced by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) in the Senate and Reps. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) in the House, which would require police obtain a warrant before compelling service providers to divulge the contents of their customers’ electronic communications.

Wireless carriers' responses to Sen. Markey are available at:

markey.senate.gov/Markey_Receives_Responses_from_Wireless_Carriers_on_Law_Enforcement_Requests.cfm