New Google Transparency Report shows exactly why we need to reform our online privacy laws

Google Transparency Report lead image

Today Google released its latest Transparency Report, which shows that U.S. government requests for user data have increased yet again. But that’s not the important part – the important part is how the government has requested this data.

Of the 8,438 requests made by the U.S. government from July through December 2012, 5,784 of them (68 percent) came in the form of subpoenas issued under the Electronic Communications Privacy Act (ECPA). The next largest chunk (22 percent) came from search warrants issued under ECPA. The remaining 758 (10 percent) “were mostly court orders issued under ECPA by judges or other processes that are difficult to categorize,” writes Google Legal Director Richard Salgado.

Google Transparency Report

The fact that two-thirds of user data requests came in the form of subpoenas is a major problem, and further evidence that we need to overhaul ECPA as soon as possible.

Unlike search warrants, which require law enforcement to show a judge “probable cause” that user information is related to a crime, subpoenas can be granted without this judicial oversight. The reasons 68 percent of data requests were subpoenas is because ECPA mandates that any online “communications” held by third-party servers for more than 180 days is considered “abandoned” by users; therefore, this data may be accessed via subpoena rather than a search warrant.

The so-called ‘180-day rule’ may have made sense back in 1986, long before what we thought of as “the Internet” existed, before the majority of our communications took place online, through third-party servers. But it certainly doesn’t make sense anymore. Nowadays, most people’s communications history would be considered “abandoned” under ECPA. Six-month-old emails, instant messages, files stored with cloud services like DropBox, photos on Facebook, online calendars – all of this and more are accessible to law enforcement under ECPA with a simple subpoena.

This, ladies and gentlemen, is a problem.

Unfortunately, it’s a problem Congress is unwilling to solve – despite the fact that Federal courts have repeatedly found that a warrant should be required to obtain electronic communications data. Late last year, Sen. Patrick Leahy (D-VT) added an an amendment to an update of the Video Privacy Protection Act (VPPA) that would have rid this world of the 180-day rule and required law enforcement to obtain a search warrant before accessing most of our digital communications, thus bringing the Fourth Amendment protections of “unreasonable searches and seizures” firmly into the Internet age. This was the second time Leahy tried to pass the ECPA amendment, and the second time he failed.

Instead of standing firm for our rights, Leahy caved to the law enforcement community, which said the search warrant requirement would hamper their abilities to stop criminals, and rewrote the bill to allow 22 federal agencies to access our communications without a warrant. For better or worse, even that version was trashed, and the 25-year-old ECPA remains unchanged to this day.

Fortunately, “we the people” have “we the Internet companies” on our side for this fight. A coalition of rights advocacy groups, legal experts, and corporations have joined together to form Digital Due Process (DDP), which is devoted toward updating ECPA. DDP includes regular warriors in this battle, like the Electronic Frontier Foundation and the Center for Democracy & Technology, as well as industry behemoths like Apple, Google, Facebook, and many more.

According to The Hill, Leahy plans to push his ECPA amendment again this year (and we can only hope that it’s not the cowardly, gutted version he reverted to when the law enforcement community came knocking). So, in other words, there’s hope. Until then, keep this in mind: Anything you say anywhere online can and will be used against you in a court of law, no search warrant required.

To learn more about ECPA, click here.

Image via Mesut Dogan/Shutterstock

The views expressed here are solely those of the author and do not reflect the beliefs of Digital Trends.


Peloton’s tech lets truckers play follow the leader to boost fuel economy

Peloton Technology can help semi trucks save fuel by running close together on the highway. Using short-range wireless communications, the trucks get a kind of super cruise control.

Biometric phone unlocks can’t be forced by feds, says U.S. judge

Fingerprint and face unlocks used to not be protected by the Fifth Amendment, but that may soon change. A judge in California has ruled biometric unlocking methods of all kinds are protected in the same way as passcodes.
Home Theater

From the Roku Ultra to the Fire TV Cube, these are the best streaming devices

There are more options for media streamers than ever, so it’s more difficult to pick the best option. But that’s why we're here. Our curated list of the best streaming devices will get you online in no time.

Switch up your Reddit routine with these interesting, inspiring, and zany subs

So you've just joined the wonderful world of Reddit and want to explore it. With so many subreddits, however, navigating the "front page of the internet" can be daunting. Here are some of the best subreddits to get you started.

‘Fallout 76’ may have online multiplayer but it’s still a desolate wasteland

"Is Fallout 76 an MMO?" That depends on who you ask. Critics and players often cite its online multiplayer capabilities as a reason it qualifies. Yet calling the game an MMO only confuses matters, and takes away from what could make…
Digital Trends Live

Microsoft has #*!@ed up to-do lists on an epic scale

Microsoft has mucked up to-do lists on a scale you simply can’t imagine, a failure that spans multiple products and teams, like a lil’ bit of salmonella that contaminates the entire output from a factory.

As Amazon turns up the volume on streaming, Spotify should shudder

Multiple players are all looking to capitalize on the popularity of streaming, but it has thus far proved nearly impossible to make a profit. Could major tech companies like Amazon be primed for a streaming take-over?

Throw out the sandbox. ‘Red Dead Redemption 2’ is a fully realized western world

Despite featuring around 100 story missions, the real destination in Red Dead Redemption 2 is the journey you make for yourself in the Rockstar's open world, and the game is better for it.

‘Diablo Immortal’ is just the beginning. Mobile games are the future

Diablo fans were furious about Diablo Immortal, but in truth, mobile games are the future. From Apple and Samsung to Bethesda and Blizzard, we’re seeing a new incentive for games that fit on your phone.
Movies & TV

He created comics, movies, and superheroes. But Stan Lee lived for joy

Stan Lee was a creator, a celebrity, an icon, and beneath it all, a real-life good guy with all the same human qualities that made his superheroes so relatable. And his greatest joy was sharing his creations with the world.

Brian Eno sets out to change music (again) with Bloom: 10 World

We always felt that Bloom was a musical system that could be developed further -- it was as if we’d built a CD player and only ever released one CD. For this release, we’ve created ten new worlds, starting with a reimagined version of…

Can two operating systems coexist? The Pixel Slate thinks so

The Pixel Slate is a 2-in-1 device like no other. It’s not the most polished product we’ve ever used, but Google has laid the foundation for letting mobile and desktop software live side-by-side in peace.

Why commercials in Android Auto could turn your dashboard into a dumpster fire

Google announced some tweaks to the Android Auto experience, focused on making messaging and media easier, but I worry about the future of the platform. For better or worse, there’s a real chance our dashboards could turn into dumpster…

These are the best video games you shouldn't leave 2018 without

Developers showed up with a number of amazing games this year. Each capitalized on something unique but there's always one that outdoes them all. Here are our picks for the best video games of 2018 and game of the year.