Attorney General Eric Holder became the White House's highest ranking official to support sweeping privacy protections requiring the government, for the first time, to get a probable-cause warrant to obtain e-mail and other content stored in the cloud.
"It is something that I think the Department will support," Holder testified before the House Judiciary Committee, when questioned about the Justice Department's position.
Last month, the Senate Judiciary Committee approved a package that nullifies a provision of federal law allowing the authorities to acquire a suspect's e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed if the content is 180 days or older.
Under the current law, the 1986 Electronic Communications Privacy Act, the government can obtain e-mail without a warrant as long as the data has been stored on a third-party server — the cloud — for 180 days or more. The government only needs to show, often via an administrative subpoena, that it has "reasonable grounds to believe" the information would be useful to an investigation.
Holder, who was speaking at a Justice Department oversight hearing, said that warrants are unnecessary for non-criminal investigations.
Holder's thinking is a sea change to the agency's position two years ago when the department testified that warrants should never be required.
Initially, ECPA provided privacy to users, but that privacy protection eroded as technology advanced and people began storing e-mail and documents on servers for longer periods, sometimes indefinitely. The act was adopted at a time when e-mail wasn't stored on servers for a long time, but instead was held briefly on its way to the recipient's inbox. E-mail more than 6 months old was assumed abandoned.
In March, Elana Tyrangiel, the Justice Department's acting assistant attorney general for the Office of Legal Policy, testified before a House subcommittee in March that the 180-day rule "no longer made sense." (.pdf)
Regardless of Holder's support, lawmakers have been debating change to ECPA for years. Similar legislation to the Senate version is pending a hearing before the House Judiciary Committee.
Still, not all President Barack Obama officials are onboard.
Mary Jo White, the Securities and Exchange Commission's new chair, wrote the Senate Judiciary Committee last month that ECPA reform would hinder the government's "ability to protect investors."
