Presidential Advisory Panel Recommends Mandatory Use of Warrants for Cloud Content and Email Access

May 5, 2014

Data privacyA special advisory panel created by President Obama recently issued recommendations that would enhance the privacy of email messages and other electronic content.  The panel took the position that all stored email messages and all digital content stored in cloud computing systems should only be disclosed to government authorities when search warrants have been issued.

The President established the panel to review the full range of implications associated with the expanding use of “Big Data” computer systems.  Among the policy issues addressed by the panel was the privacy of personal information processed and stored in Big Data networks.

Currently, the key U.S. statute addressing access to stored email and other digital communications content is the Electronic Communications Privacy Act (ECPA).  The ECPA requires use of warrants for access to stored electronic communications content only for messages that are less than 180 days old.  All older messages can at present be accessed by authorities without a warrant.

The panel concluded that all email messages and other forms of stored communications content should be subject to the search warrant requirement, regardless of how long those communications have been stored.  The recommendation provides an important step toward enhancing privacy protection available to individual Americans.

There is apparently growing support for the privacy protections advocated by the President’s advisory panel.  Reportedly, both the Senate Judiciary Committee and the U.S. Department of Justice support the modifications advocated by the panel.

The panel’s recommendations are sensible and timely.  The ECPA was drafted at a time when the scope and significance of electronic communications were substantially more limited than they are today.  At that time, the volume of stored communications was far less substantial than it is today.

In the age of Big Data, it is possible to create and maintain vast collections of stored communications.  Access to those voluminous collections should be carefully controlled and limited.  The global controversy and debate spurred by Edward Snowden’s disclosures regarding National Security Agency data collection activities highlight the significance of effective control over government access to the personal data of individuals.

The President’s advisory panel has made an important contribution to the ongoing discussion regarding privacy rights of individual citizens.  Its recommendations regarding mandatory use of search warrants for all stored electronic communications are important and particularly relevant at the present time.  ‘Congress should act immediately to provide the expansion of privacy for electronic communications recommended by the advisory panel.