On July 12, the Department of Justice has issued a request to web hosting provider, DreamHost, seeking information on visitors to a website that was used to organize protests against President Trump on Inauguration Day. DreamHost has fought this request because it would amount to handing over 1.3 million visitor IP addresses, contact information and content, in what appears to be a clear threat to freedom of speech and privacy.
The broad search warrant seeks for DreamHost to turnover detailed information, including IP addresses, contact information and financial information of all visitors to the site; DreamHost already complied with the request to turn over the registration information of the owners of the website. The warrant also seeks communications and unpublished content, such as draft posts and photos.
The request will clearly have the effect of chilling freedom of speech and freedom of association. It appears that the Administration is seeking to identify dissidents who oppose President Trump, a clear threat to the First Amendment rights of the website’s visitors. One can only assume that the Administration is using the power of the DOJ to threaten and silence critics of President Trump.
For libraries, who have long championed freedom of speech and association, these reports are particularly appalling. Privacy is essential to the exercise of the First Amendment so that an individual may research, inquire and learn without having the subject of his interests scrutinized by others. Patron privacy has long be a fundamental value of libraries and in a world where so much information is now online, it is critical for protections to extend to visitors to websites. The DOJ’s warrant threatens these central tenants to a free and open democracy.
DreamHost is challenging the request, with a hearing scheduled for today. DreamHost argues that the search warrant is overly broad and violates the Fourth Amendment and privacy laws. You can read more at DreamHost’s blog post on the case.
Today is Data Privacy Day, a day for organizations, companies, and individuals to advocate for stronger privacy rights. One area that is badly in need of reform is the Electronic Communications Privacy Act (ECPA), a law that was passed in 1986 that governs when government agencies can access e-mails and other online communications. This law has clearly not kept pace with evolving technologies and permits agencies to access documents or communications that are older than 180 days and stored online with merely a subpoena, meaning that no warrant or prior judicial consideration is necessary. This result is an absurd one, affording online communications with less protection than hard copy documents stored in an office or filing cabinet.
As libraries and universities move services into the cloud and more communications take place online, it is critical that Fourth Amendment protections continue to apply even in the digital world. The way individuals communicate and interact today has clearly changed since ECPA’s enactment in 1986 and the law must be updated to protect civil liberties. ARL has been a member of a broad coalition that includes civil liberties groups (such as ACLU, CDT, EFF and others) as well as technology companies (such as Google and AT&T) and trade associations (such as CCIA), to advocate for updates to ECPA.
In the last Congress, ARL celebrated when the Email Privacy Act, a bill that would provide much needed updates to ECPA, reached a milestone of 218 co-sponsors in the House of Representatives on June 17, 2014 representing a majority of support from members in the House. The Email Privacy Act ultimately attracted 270 cosponsors with broad, bipartisan support. The Senate had its own version of the bill, which passed committee, but never reached the floor.
Twenty-nine years have passed since ECPA was enacted and today’s digital world is very different from the one that existed in 1986. Congress has waited long enough to act on this important issue and we urge re-introduction and swift passage of the Email Privacy Act.
On September 8, 2014, the Association of Research Libraries joined a broad coalition of seventy-six technology companies as well as privacy and public interest organizations in sending a letter to Senate Majority Leader Harry Reid (D-NV) and House Majority Leader Kevin McCarthy (R-CA) urging reform of the Electronic Communications Privacy Act (ECPA). Both the Senate and House have considered bills to update ECPA and ensure that Fourth Amendment privacy protections extend to the online communications. The House version of ECPA reform, H.R. 1852 reached a milestone of 218 co-sponsors on June 17, 2014 representing a majority of the House and the bill enjoys broad bipartisan support. Since that date, additional co-sponsors have been added to H.R. 1852 and more than 260 Members have joined in their support of this bill. The Senate bill, S. 607, also enjoys bipartisan support and was introduced by Senators Leahy (D-VT) and Lee (R-UT) and was approved by the Senate Judiciary Committee in 2013.
ECPA reform is necessary to ensure that the Fourth Amendment guarantees of privacy apply equally to digital information as it does to physical property. ECPA, enacted in 1986, has not kept pace with evolving technologies and allows government agencies to access online communications that are older than 180 days without obtaining a warrant, thereby affording digital information, such as that which is stored in the cloud, less protections than data stored locally in a home or office. The bills considered by Congress would require warrant-for-content, a standard that the U.S. Department of Justice already follows. Civil regulatory agencies want an exception, however, allowing the collection of content directly from third-party service providers. The letter states clear opposition to a “carve-out of regulatory agencies or other rules that would treat private data differently depending on the type of technology used to store it.”
As libraries and universities increasingly used cloud-based services and more communications take place online, ensuring that the Fourth Amendment extends to information in the digital world becomes critical. ECPA reform would avoid the current absurdity that currently affords online communications and information less protection than physical documents.
On June 19, 2014, the U.S. House of Representatives voted 293-123 to pass an amendment to the Defense Appropriations bill to cut funding for NSA backdoor spying under Section 702 of the FISA Amendments. Current NSA practices include the collection of vast amounts of information and, provided that there is a foreign “target,” the NSA can search these collections for communications of U.S. persons, thus providing a “backdoor” method of conducting surveillance on Americans. This Amendment, originally primarily sponsored by Representatives Massie (R-KY), Sensenbrenner (R-WI) and Lofgren (D-CA), would restore Fourth Amendment protections by cutting funding of current NSA practices of conducting these warrantless searches.