In recent years, Federal law enforcement agents have increasingly sought and obtained secret court orders under the Electronic Privacy Communications Act (the “ECPA”) requiring internet service providers to disclose certain information about customer accounts. As reported last week by the Wall Street Journal, the U.S. government has obtained such secret orders requiring Google, Twitter, and Sonic.net to disclose information regarding the accounts of Wikileaks volunteer Jacob Applebaum. These sealed orders allow the government to obtain information from individuals’ emails and cell phones without a search warrant and without providing notification to the subject of the search.

The ECPA was passed in 1986 with the purpose of protecting the privacy of electronic communications, telephone, and mail. However, the law allows a governmental entity, simply by obtaining a court order, to require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber or customer (but not the content of any electronic communications). The standard for obtaining a court order under the ECPA is showing reasonable grounds that the information sought may be relevant and material, which is below the probable cause standard required by the Fourth Amendment. Thus, rather than protecting user’s privacy, the ECPA has become an effective tool for law enforcement to gather information about individuals’ email communications.

As detailed in the article, the U.S. Department of Justice obtained court orders in December 2010 directing Google, Twitter and Sonic.net to turn over the IP addresses from which Mr. Applebaum logged into his accounts as well as the email and IP addresses of people with whom Mr. Applebaum corresponded, dating back to November 1, 2009. Sonic.net unsuccessfully fought the government’s order and was ultimately forced to turn over the information, but it was able to get the order unsealed. Twitter has not yet complied with the order, but won the right to notify the subscribers whose information was sought. It is not known whether Google has challenged or complied with the order.

How often are these orders used? According to the Wall Street Journal, this data is difficult to obtain because of the secrecy surrounding the orders, but Google has previously disclosed that in the last six months of 2009 it received 4,601 requests from the government for information (including, but not limited to, requests under the ECPA among) and complied with 94% of these.

The government’s use of the ECPA to obtain such information without a search warrant has increasingly come under criticism. As the article illustrates, there is a growing debate among law enforcement, defense attorneys, legal scholars and legislators regarding the ECPA’s continued relevance in light of the many technological advances since its enactment in 1986. Supporters of the ECPA have expressed concern that proposed changes to the act would prolong and undermine criminal and national security investigations. Meanwhile, various courts, including the Sixth Circuit Court of Appeals and the Eastern District of New York have questioned the constitutionality of these orders in cases where the government obtained emails and cellphone information without a search warrant.

In response to these concerns, the Digital Due Process Coalition, which consists of public interest groups and public companies such as the ACLU, AT&T, Google, Microsoft, the Center for Democracy and Technology, and Electronic Frontier Foundation, has been lobbying Congress to update the Act to address these privacy concerns. While it remains to be seen whether Congress will adopt greater protections, one thing is clear – the Wall Street Journal has ensured that the public is no longer in the dark about these “secret orders.”

Photo of Jonathan B. New Jonathan B. New

Jonathan New focuses his practice on white collar criminal and regulatory matters, internal corporate investigations and complex commercial litigation.

Since joining Baker Hostetler, Mr. New has advised clients on legal and regulatory compliance issues and has represented individuals, companies and professionals in connection…

Jonathan New focuses his practice on white collar criminal and regulatory matters, internal corporate investigations and complex commercial litigation.

Since joining Baker Hostetler, Mr. New has advised clients on legal and regulatory compliance issues and has represented individuals, companies and professionals in connection with criminal investigations conducted by the Department of Justice, the Federal Bureau of Investigations and the Internal Revenue Service. He has also counseled clients on various issues involving intellectual property and computer crimes.

Prior to joining the firm, Mr. New served for nine years in a variety of frontline positions in the United States Department of Justice. As an Assistant United States Attorney, Mr. New was the lead prosecutor in the largest mortgage fraud prosecution in the Southern District of New York, resulting in the closure of a corrupt mortgage brokerage and title company and the convictions of dozens of real estate professionals, bank employees and attorneys. He also investigated and prosecuted complex criminal cases involving bank, mortgage and other commercial fraud, securities fraud, insurance and healthcare fraud, offshore illegal Internet gambling, money laundering, international trafficking in counterfeit goods, racketeering, conspiracy, murder, robbery, obstruction of justice, extortion, alien smuggling and narcotics offenses.

Prior to his tour as an Assistant United States Attorney, Mr. New gained significant civil litigation experience as a Trial Attorney in the Federal Programs Branch of the Civil Division of the United States Department of Justice. In that capacity, he defended federal statutes, policies, regulations and programs of national significance against challenges, including those based upon claimed violations of constitutional law. Among his successes, Mr. New successfully defended the United States in a landmark NAFTA litigation, was lead counsel for the Overseas Private Investment Corporation in claims against the Islamic Republic of Iran and defended numerous federal agencies in a wide range of lawsuits. Mr. New received a special commendation award for Outstanding Service in the Civil Division.