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Digital Privacy Loophole in Federal Law

Most people are aware that law enforcement needs a search warrant to obtain physical property inside your house, such as a computer or a flash drive. What you may not know, however, is that a search warrant is not required for any information you have uploaded to a third-party server known as “the cloud.” The Electronic Communications Privacy Act of 1986 says that a subpoena is all that is required if law enforcement wants to gain access to that digital information. WGRZ’s Michael Wooten interviewed constitutional attorney Barry Covert about the loopholes in this 30-year-old law and what people should know going forward. The full story is available on the WGRZ website.

Law hasn't kept up with technology

When the Electronic Communications Privacy Act went into effect in 1986, things like social media, smartphones, and the cloud did not yet exist. Over the past 30 years, the law has not kept up with the technological advancements that have been made. According to WGRZ, this means that digital data that is stored on the cloud is treated differently than digital data stored on your personal computer. For example, if you have an email in the cloud that is either at least 180 days old or that has already been opened, law enforcement can obtain that email with just a subpoena, not a search warrant. “There’s this huge hole out there that people aren’t aware of,” Mr. Covert told WGRZ.

More information in cloud than people know

According to WGRZ, only a subpoena is needed to access things like text messages, emails, and other private messages if they have been in the cloud for longer than 6 months. There is no time limit on getting a subpoena for a document in the cloud. “It’s very troubling,” Mr. Covert said. “It should be troubling to everybody because people don’t even understand what they’re keeping in the cloud. They don’t understand what they have on servers.” Mr. Covert also told WGRZ that even things like your financial information could be accessible from the cloud without a search warrant. “Do you have your tax returns in the cloud? What information is in the cloud or on servers somewhere in some other state that you’re not aware of? And it’s perfectly legal for that information to be mined through subpoenas.”

New bills focused on digital privacy

WGRZ reports that a bill requiring law enforcement to obtain a search warrant for digital data passed the House of Representatives in April and is currently being reviewed in the Senate. There are several states that have passed laws requiring a search warrant for this information and New York is considering a bill for it, as well. Mr. Covert told WGRZ that “we need out politicians to constantly and vigilantly revisit laws to make sure they’re encompassing all sensitive and private information that we have.”

About Barry N. Covert

Mr. Covert is a senior partner in Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area. He is known for his aggressive representation of clients in the areas of New York State and federal criminal trials and appeals; driving while intoxicated; constitutional law, including First Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct and fraud, research misconduct and fraud, plagiarism, and fabrication of evidence; and professional licensing defense. Mr. Covert frequently provides legal analysis for WGRZ and other media outlets.

 

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