On Wednesday, September 16th, members of the Federal Trade Commission (FTC) told Congress that the agency needs power to access emails of Americans without a warrant approved by a judge.
The comments came at a Senate Judiciary Committee hearing on electronic privacy reform related to the Electronic Communications Privacy Act of 2015 (ECPA), a bill with bipartisan support which would require government agencies to get warrants before accessing emails and chats, regardless of how old the content is. The EPCA was first passed in 1986 to help the FTC investigate fraudulent businesses. As of right now, the government can use a process known as administrative subpoena to access messages older than 180 days without a warrant.
The Daily Dot reported:
“The agency said in prepared testimony that it was “concerned that its robust anti-fraud program will suffer if copies of previously public commercial content that advertises or promotes a product or service cannot be obtained directly from the service provider.”
“Without further clarification to recent legislative proposals,” the agency said, “updates to ECPA would appear to prevent the FTC from compelling ECPA service providers to produce such previously public material.”
The U.S. Securities and Exchange Commission also testified against the EPCA. Andrew Ceresney, director of the SEC’s enforcement division, stated, “because the SEC and other civil law enforcement agencies cannot obtain criminal warrants, we would effectively not be able to gather evidence, including communications such as emails, directly from an [Internet Service Provider], regardless of the circumstances.”
The FTC is essentially arguing that without warrantless access to emails and chats, it might not be able to fully execute its mission. Despite the warnings from the FTC, the agency has been unable to list specific cases where warrantless surveillance was vital to an investigation. At the hearing Daniel Salsburg, an attorney with the FTC, said, “I can’t necessarily say it would produce emails that would dramatically further the investigation.”
FTC Commissioner Julie Brill was also critical of the agency’s request to be exempted from the EPCA. In a written statement Brill wrote:
“I am concerned that a judicial mechanism for civil law enforcement agencies to obtain content from ECPA providers could entrench authority that has the potential to lead to invasions of individuals’ privacy and, under some circumstances, may be unconstitutional in practice.”
The FTC was also concerned that under provisions of the EPCA it would not have the ability to access customers information even if they give consent. The FTC argued that:
“A defendant may want to authorize the FTC to obtain documents directly from its cloud computing account, if the records are voluminous, or the defendant’s only copies of the records are maintained on that service.”
The agency said the EPCA 2015 would impede this ability. However, Senator Richard Blumenthal was skeptical of the imagine scenario and asked Salsburg if the situation was common.
“There have been a couple of instances where this has occurred,” Salsburg said, “but it’s not common.”
Google was also critical of the FTC’s arguments. Richard Salgado, Google Inc.’s law enforcement and information security director, told the National Law Journal, “This committee is being asked by some today to jettison precisely the type of categorical rules that the Supreme Court held were imperative.” Salgado is referring to the a unanimous 2014 Supreme Court decision requiring police to obtain a warrant before searching the contents of a cell phone during an arrest.
Thankfully the claims made by the FTC are being met with skepticism and disdain. Unfortunately, the agency is only one of many agencies that are seeking surveillance abilities or already in possession of surveillance tools. Americans who value privacy and freedom should take notice and work to beat back the maneuvers of an increasingly oppressive government.