So with hundreds of millions of people re-directing their communications to electronic media, and in particular web-hosted e-mail like Gmail, it may surprise you to learn that under current laws, you have a far greater expectation of privacy in your regular mail than you do in your e-mail.

If you have any type of web-based e-mail account, the Stored Wired and Electronic Communications and Transactions Records Access Act (ECPA), 18 U.S.C. § 2701, despite the long and boring sounding title, is a statute worth getting to know. Enacted in 1986, the ECPA was actually quite forward-thinking in addressing governmental access to electronically stored information. Nevertheless, to some, recent case law interpreting the statute – such as the Central District of Illinois’s 2009 decision in U.S. v. Weaver, 636 F. Supp.2d 769 (C.D. Ill. 2009) – signal a need for legislative reform.

At issue in the Weaver case, was whether law enforcement officers could gain access to the contents of the defendant’s (accused of child pornography charges) Microsoft/MSN Hotmail account with a trial subpoena rather than a search warrant.

Why does it matter whether the government is required to obtain a search warrant as opposed to a trial subpoena? It matters because search warrants are much more difficult to get. To obtain a search warrant, the government must demonstrate probable cause and this requires the approval of a judicial officer. By contrast, a trial subpoena can be obtained by making the much less demanding showing that the requested materials are likely to contain relevant and admissible evidence – subpoenas can be issued by a court clerk or in some jurisdictions, the attorney herself.

So back to the outcome of the decision: the court reasoned that under the current statute, “for emails less than 181 days old, the question of whether a warrant is necessary turns on whether the emails are in ‘electronic storage’ or are ‘held or maintained . . . solely for the purpose of provided storage or computer processing services to [the] subscriber or user.’”

Somewhat counter-intuitively, “if [the emails] are held or maintained solely to provide the customer storage or computer processing services” then a subpoena would suffice. Significantly, the court’s decision turned on its finding that because Hotmail is a “web-based” and “remote” e-mail system, the messages stored in the defendant’s Hotmail account were maintained “solely for the purpose of providing storage or computer processing services” to him – and not for backup purposes. Click here for a copy of the decision.

If you find this discussion a somewhat odd way to think about the privacy issues related to e-mail, you are not alone. A interesting and diverse group of advocacy groups, technology companies, think tanks, attorneys and law professors have banded together to form Digital Due Process, a coalition in support of reforming the ECPA. For more information on Digital Due Process, click here.

While legislative reform may well be on the horizon, in the mean time, you might be able to improve your expectation of privacy in your e-mail by backing up what you need locally and taking what you don’t need off the web (it certainly can’t hurt). Here are some resources to help you accomplish this:

http://lifehacker.com/5335553/free-tools-to-back-up-your-online-accounts

http://mail.google.com/support/bin/answer.py?hl=en&answer=34030

http://www.sync-blog.com/sync/2008/01/how-to-back-u-1.html

Plus: Just this past week, Google (a member of the Digital Due Process coalition) has broken with the trend by treating the issue of government requests for data with remarkable transparency. Indeed, Google has an entire webpage devoted to the issue (click here) – complete with a nifty map showing where the requests come from, country by country.

cc licensed flickr photo shared by alancleaver_2000

In addition to having one of the longest titles we have seen (so let’s just call it In re Application for the purposes of this post), this is a case with serious implications for the 84% of the nation’s population (that’s an estimate of how many American’s currently own mobile phones).

The dispute in In re Application centers around the government’s ability to access your phone’s location data.  As you might already know, your cellphone periodically sends location data to your carrier.  What you might not know is that this happens about once every seven seconds while your phone is on and that depending on the density of cell sites (and whether or not your phone has GPS) this data can pinpoint your location within a few feet.

Allowing government entities to have this type of data can certainly be very useful and desirable – for example, it can help emergency services locate you if you call 911.  But to some, the idea that law enforcement authorities have access to this location data — in other words, access to information about exactly where someone is now and has been (every seven seconds) for days, weeks, or months — it can start to sound a bit Orwellian.

Of course, law enforcement authorities regularly gain access to all kind of information in the course of their investigations — they can even search your home or wiretap your phone.  But in those circumstances, the ability to engage in this type of invasion of privacy comes with a backstop:  investigators must obtain a search warrant from a judge upon a demonstration of probable cause.  And this is precisely what is at issue in the In re Application — whether cell phone users have a reasonable expectation of privacy in their location data such that the government should have to follow similar procedures to access it.

According to the government, the answer is no;  “One who does not wish to disclose his movements to the government need not use a cellular telephone,”  wrote a prosecutor in brief in the case.  Not surprisingly, privacy advocates like the Electronic Frontier Foundation and the ACLU disagree.  Both organizations filed an amicus brief in the case.  You can read the brief, here.

For media coverage of the lawsuit, check out:

Law.com

Philadelphia Inquirer

CNET

New York Times (Editorial)

by  mira66

The court held that DNA profiles describe the suspect sufficiently for identification. “A warrant or complaint is an accusation against a person, and not against a name, and [w]hen the name is unknown, the person may be identified with the best description available. … A genetic code describes a person with far greater precision than a physical description or a name.”

Dissenting Judge Carols Moreno, questioned the authenticity of “John Doe” warrants, stating that document was “a clever artifice intended solely to satisfy the statute of limitations until the identity of the perpetrator could be discovered.”

The court’s ruling upheld the conviction of Paul Robinson on sexual charges. Evidence linking Robinson to the crime was discovered when his DNA was mistakenly collected and entered into the state’s DNA database, which matched his profile with that of the suspect profile in the “John Doe” warrant.