E-mail and privacy rights are in the news as Congress considers updating a 26 year-old law. That law, the Electronic Communications Privacy Act, allows government investigators to access and use all online documents that are older than 180 days. The law is a remnant of a world before the rise of e-mail and many defense advocates believe it is in desperate need of a refresh.
Although many prosecutors oppose any changes to give defendants more rights to e-mail privacy, changes are unlikely to slow down federal criminal cases.
To begin with, the standard for receiving a warrant is low enough that some judges often "rubber stamp" applications instead of actually reviewing them. The law requires investigators to show "probable cause" with evidence that shows why authorities suspect a crime occurred. Since police can almost always point to something, judges may skip a thorough review and just approve the application. If this happens, a warrant is actually defective and any evidence discovered during the search may be inadmissible.
A new law would not change this standard, meaning that prosecutors just have a small extra hoop to jump through before searching suspects' e-mail accounts.
In addition to this low hurdle for receiving warrants, prosecutors have other tools for investigating defendants' use of e-mail. Federal investigators can subpoena some basic data from Internet service providers without even talking to a judge. This information includes "routing data" - the sender of a specific e-mail and the location from which that person sent the document.
Prosecutors can also ask a judge for what is known as a "D order." "D orders" allow investigators to receive more basic data, including the sender and all of the recipients of an email. Judges use an even lower standard to determine whether to issue a "D order" - prosecutors only have to point to a reasonable suspicion that a crime occurred.
While the ECPA desperately needs an update to give defendants more protection from aggressive federal investigations, Americans should not expect new changes to give much in the way of real privacy. Prosecutors have too many other tools at their disposal.
This makes an effective criminal defense strategy that much more important. Defendants need to consult with an experienced defense lawyer to pursue every possible route for invalidating seized e-mail evidence.
Source: Associated Press, "Greater email privacy won't hinder law enforcement," Nov. 29, 2012; Washington Post Opinions, "Keeping e-mail private," Editorial Board, Nov. 28, 2012