This isn't the first time Udall's had to duke it out with Eric Holder and the Justice Department regarding citizen's privacy:U.S. Sen. Mark Udall said today he is concerned that the Department of Justice subpoenaed and seized phone records on an unusually broad scale from the Associated Press and that it could have a "chilling effect" on the Fourth Estate.
Udall, D-Colo., urged the Justice Department to quickly explain its actions.
"The Justice Department's criminal investigation pertains to a leak of classified information, an issue I take very seriously as a member of the Senate Intelligence Committee. I understand that the unauthorized disclosure of classified intelligence can risk lives, endanger our national security, and harm the effectiveness of our intelligence efforts," Udall said in a statement.
"But our country has a centuries-long tradition of a free and independent press — a tradition enshrined in the U.S. Constitution," the congressman from Boulder continued. "The Justice Department must always keep Americans' First Amendment rights at the forefront as it considers subpoenas of private records, especially those of news organizations."
It came to light this week that federal prosecutors seized records from 20 telephone lines used by reporters and editors at the Associated Press. The action was reportedly taken as the Obama administration, which has vowed to be touch on leaks to the media, seeks to discern which government official tipped off the AP about an Al Qaeda terrorist probe into a plot to detonate a bomb aboard a U.S.-bound airplane to avenge Osama bin Laden death. U.S. forces killed the Al Qaeda leader in Pakistan on May 11, 2011. - Aspen Business Journal, 5/14/13
Here's a little more info:Last month, Sen. Mark Udall and a handful of other privacy-focused politicians persuaded the IRS to promise to cease warrantless searches of Americans' private correspondence.
Now Udall, a Colorado Democrat, is taking aim at the Justice Department, which has claimed the right to conduct warrantless searches of Americans' e-mail, Facebook chats, and other private communications.
"I am extremely concerned that the Justice Department and FBI are justifying warrantless searches of Americans' electronic communications based on a loophole in an outdated law that the U.S. Court of Appeals for the 6th Circuit ruled was unconstitutional," Udall said in a statement sent to CNET Thursday.
Udall's statement cites a CNET article yesterday that was the first to disclose the Justice Department and the FBI's electronic search policies. The article was based on internal government documents obtained by the American Civil Liberties Union.
The senator's statement urges Congress to move quickly to update the 1986 Electronic Communications Privacy Act -- enacted during an era of dialup modems and the black and white Macintosh Plus -- that currently does not require search warrants for all e-mail messages. The 6th Circuit ruled in 2010, however, that the privacy protections enshrined in the Fourth Amendment require police to obtain search warrants signed by a judge first. - CNET, 5/9/13
Udall's call for updating the 1986 Electronic Communications Privacy Act is needed now more than ever:Using a public records request, the American Civil Liberties Union received a set of FBI documents Wednesday. An internal June 2012 department guide included among the documents shows that the FBI believes it can obtain the contents of emails without a warrant if the email was sent or received through a third-party service.
In at least one case before that guide was written, however, a federal court disagreed: In a 2010 decision, the 6th Circuit Court of Appeals found that emailers using cloud services have a reasonable expectation of privacy and are protected by the Fourth Amendment to the United States Constitution's warrant requirement.
Many email providers, including Google, Microsoft, and Yahoo have adopted the 6th Circuit's reasoning, asking for a warrant every time the government wants access to emails. But others may be less stringent in their requirements, turning over email on the basis of administrative subpoenas that are not given serious judicial review. It's not clear how often the FBI actually applies for full warrants in practice. - Huffington Post, 5/9/13
If you'd like to get more information about what's being done in the Senate to update theAlbert Gidari, a partner at the Perkins Coie law firm who represents technology companies, said since the Sixth Circuit Court of Appeals' 2010 ruling in U.S. v. Warshak, the Justice Department has generally sought court warrants for the content of e-mail messages, but is far less inclined to take that step for non-email files.
Before the Warshak decision, the general rule since 1986 had been that police could obtain Americans' e-mail messages that were more than 180 days old with an administrative subpoena or what's known as a 2703(d) order, both of which lack a warrant's probable cause requirement and are less privacy protective. Some e-mail providers, including Google, Microsoft, Yahoo, and Facebook, but not all, have taken the position after Warshak that the Fourth Amendment mandates warrants for e-mail all over the country.
The 180-day rule stems from the Electronic Communications Privacy Act, which was adopted in the era of telephone modems, BBSs, and UUCP links, and long before gigabytes of e-mail stored in the cloud was ever envisioned. Since then, the appeals court ruled in Warshak, technology had changed dramatically: "Since the advent of e-mail, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away... By obtaining access to someone's e-mail, government agents gain the ability to peer deeply into his activities."
A phalanx of companies, including Amazon, Apple, AT&T, eBay, Google, Intel, Microsoft, and Twitter, as well as liberal, conservative, and libertarian advocacy groups, have asked Congress to update ECPA to make it clear that law enforcement needs a warrant to access private communications and the locations of mobile devices. - CNET, 5/8/13
1986 Electronic Communications Privacy Act or if you have any question you may have, please contact Udall's office for more details: