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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Debate Continues Over FBI Rights to Electronic Records and Data

Sep 13th, 2012 Current Affairs

In July 2010, The New York Times reported that the Obama administration asked Congress to amend the Electronic Communications Privacy Act (ECPA) so that the FBI would have authority to obtain electronic records related to e-mail and other electronic communications without a judge-issued warrant.

Currently, the Act prohibits companies that deal in electronic communications from revealing customer information without a warrant, with the exception of information deemed relevant to national-security investigations. The proposed alteration would mean adding “electronic communication transactional records” to the categories of information to which the FBI already has access.

According to The Times, the Justice Department asserted that “electronic communications transactional records,” while not explicitly stated on the list of categories of information available to the FBI, are listed elsewhere in the Act and, therefore, the FBI may already obtain such information. The FBI made a similar argument by analogizing the e-mail addresses to which people send messages and the Web pages they visit to the phone numbers they call.

In practice, many companies, speaking anonymously, admitted to The Times that they had routinely turned over such records when demanded to do so by the FBI, even in the absence of a court order.

The proposal was presented as a discrete and technical alteration that would not grant the FBI new powers. While no amendments to the ECPA have been made, the public has expressed concern over electronic privacy rights.

The Wall Street Journal recently reported that technology companies and the U.S. government are again locked in a battle to determine the scope of the FBI’s “electronic” rights. Only this time, the question is whether the FBI may obtain the smartphone passwords of criminal suspects without a search warrant. The issue stems from a controversy sparked earlier this year when Google, presented with a search warrant, refused to heed FBI demands to unlock a suspected pimp’s smartphone powered by Android software.

The “Third Party Doctrine,” as it has been dubbed by the Supreme Court, states that government officials may obtain certain electronic data from third parties, such as electronic companies, without a search warrant. But does that principle apply to data as sensitive as passwords? As The Wall Street Journal explains, Google’s refusal to provide the password poses that very question while emphasizing the ambiguities still present in this area of law.

You can read the original New York Times article here.

You can find the report by The Wall Street Journal here.

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