Facebook and Google deserve the criticism they have received over the years for fumbling user privacy. But the two Internet giants, along with Microsoft and Yahoo, also deserve kudos for defying police requests for users’ online communications.
Defying Federal Law
The companies have chosen civil disobedience over following federal privacy standards set by an outdated Electronic Communications Privacy Act. Passed in 1986, long before the Internet became a force in American life, the ECPA does not provide email and online photos, video and documents the same protections as digital content stored in your home computer.
While police need a court-issued search warrant for the latter, a much-easier-to-obtain subpoena is all that is needed under the ECPA for content stored on the Internet. Subpoenas are often issued by prosecutors, who are much quicker to give cops the green light than a judge.
In criminal cases, Facebook, Google, Microsoft and Yahoo demand that police have a search warrant before handing over private online communications. The defiance stems from their belief that the Fourth Amendment trumps the ECPA.
“We believe a warrant is required by the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable search and seizure and overrides conflicting provisions in ECPA,” David Drummond, chief legal officer for Google, said in a recent blog post.
Google’s argument has the support of the industry. “A change in technology should not mean a change in the principles behind our laws against unreasonable search and seizure,” Ed Black, president and chief executive of the Computer & Communications Industry Association, said in a statement.
Legal Precedent
The legal precedent cited by the companies is in United States v. Warshak, a 2010 federal appeals court ruling that found police violated a man’s constitutional rights by reading his email without a warrant, according to political newspaper The Hill. Legally, the tactic is risky because the ruling does not apply to police outside the court’s jurisdiction in Tennessee, Ohio, Michigan and Kentucky.
Based on statistics provided by Google, the government is more often than not using subpoenas over warrants. In the last six months of last year, 68% of the requests Google received from U.S. government entities were through subpoenas. Only 22% were through search warrants.
How much of a fight these companies put up in resisting subpoenas is not known. Google, which is the most vocal, says it won’t budge until there’s a warrant ordering them to surrender a user’s search query information, Gmail messages, documents, photos and YouTube videos.
Spotty Privacy Records
The bravado has a self-serving element. After all, people would be less apt to store their digital assets with Google or the other companies, if they were not willing to fend off government abuse.
Within their own operations, Google and Facebook have been criticized often for practices that sacrifice user privacy for building a better platform for advertisers. For the next 20 years, Facebook has to undergo third-party privacy audits, as part of a settlement with the Federal Trade Commission. In Europe, Google has crossed swords with regulators over a uniform privacy policy adopted last year that allowed the sharing of user information across its services.
Because these companies act like Dr. Jekyll and Mr. Hyde when it comes to privacy, we would all be better off if Congress was to fix the ECPA, and let Internet companies go back to their ad-driven businesses. Vermont Democrat Patrick Leahy, chairman of the Senate Judiciary Committee has said that updating the law is one of his top priorities. Republican leaders are less gung-ho about adding a warrant requirement, because of concerns raised by law enforcement.
Until these differences get settled, Google, Facebook, Yahoo and Microsoft will remain the first line of defense between users, government and law enforcement. While it’s not the optimal way to protect privacy, we should be thankful that they are taking a stand.
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