Bill would require warrants for access to cloud e-mail, cell phone location data

Sen. Patrick Leahy (D-Vt.) has introduced legislation that would strengthen privacy protections for personal data located in the cloud and on smart phones and mobile devices.

Leahy, chairman of the Senate Judiciary Committee, said the bill would require government agencies to obtain warrants based on probable cause before gaining access to information such as Web-based e-mail messages or geographic location data from smart phones and other mobile devices.

The warrant provision is likely to be controversial judging by the opinions expressed at a committee hearing April 6. Although civil liberties groups and technology companies generally favor warrants to protect privacy, law enforcement officials said that in many cases, it is crucial to immediately get geographic location information on suspects.

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Leahy’s legislation, introduced May 17, would allow for exceptions to be made “during an emergency involving either imminent danger, organized crime or an immediate threat to national security” and in cases of a call for emergency service.

The bill would also encourage private-sector cooperation in government cybersecurity efforts by allowing service providers to voluntarily disclose content to the government that is pertinent to addressing a cyberattack on their computer networks.

Leahy, who authored the Electronic Communications Privacy Act of 1986 before the Internet or smart phones existed, said that law is outdated and has been outpaced by new technologies.

His new bill would “make commonsense changes to existing law to improve privacy protections for consumers’ electronic communications and to clarify the legal standards for the government to obtain this information,” Leahy said.

The bill includes a provision that would allow the government to temporarily delay notification of its access of stored electronic communications if that notification would endanger national security.

“The balanced reforms in this bill will help ensure that our federal privacy laws address the many dangers to personal privacy posed by the rapid advances in electronic communications technologies,” Leahy said.

The Digital Due Process organization has been advocating for stronger digital privacy protections. The coalition includes technology companies such as Amazon, Facebook, Google and Microsoft and privacy advocates such as the American Civil Liberties Union.

In a statement during the April 6 hearing, ACLU officials said, “The government shouldn't be able to get personal electronic information (like e-mail, online documents and search records) without a warrant, just like they can't enter your home and take your personal papers without a warrant. Your cell phone shouldn't be used as a personal tracking device without a warrant or even your knowledge. The government should need a warrant to access sensitive location information.”

But James Baker, associate deputy attorney general at the Justice Department, cautioned against hindering law enforcement’s ability to capture criminals and terrorists. “The government’s ability to access, review, analyze and act promptly upon the communications of criminals that we acquire lawfully, as well as data pertaining to such communications, is vital to our mission to protect the public from terrorists, spies, organized criminals, kidnappers and other malicious actors,” he said at the hearing.