For a brief, shining moment, Sen. Patrick Leahy told us he was going to make law enforcement get warrants to obtain our information from the internet. And then, poof, it was gone. Law enforcement patiently explained to the good senator that it would make their lives more difficult, and he said, “Oh no, we can’t have that.”
But there was another way. A way that few of us considered, and fewer still ever believed could happen. While the law required nothing more of the government than the mere asking, it didn’t require the recipients of the request to comply. The targets of government subpoenas for our lives weren’t obliged to cooperate.
And someone at Google, maybe the Jolly Good Fellow, decided to just say no. In an article in Wired, via Grits for Breakfast :
The development surfaced as Google publicly announced that more than two-thirds of the user data Google forwards to government agencies across the United States is handed over without a probable-cause warrant.
A Google spokesman told Wired that the media giant demands that government agencies — from the locals to the feds — get a probable-cause warrant for content on its e-mail, Google Drive cloud storage and other platforms — despite the Electronic Communications Privacy Act allowing the government to access such customer data without a warrant if it’s stored on Google’s servers for more than 180 days.
The government asked. Google delivered. That’s the way it worked. Until now.
Google demands probable-cause, court-issued warrants to divulge the contents of Gmail and other cloud-stored documents to authorities in the United States — a startling revelation Wednesday that runs counter to federal law that does not always demand warrants.
“Google requires an ECPA search warrant for contents of Gmail and other services based on the Fourth Amendment to the Constitution, which prevents unreasonable search and seizure,” Chris Gaither, a Google spokesman, said.
What Congress is too cowardly to give us, Google will provide.
The significance of Google’s new stance, its demand for a search warrant before turning over information to the government, cannot be overstated. Entire lives are online, our most personal information and most private moments, exist on third party servers. The courts, explaining that by handing our information over to the cloud, say we have forfeited any reasonable expectation of privacy, though most ordinary people have no idea what they’ve given away.
Whenever a court has concluded that the third-party doctrine lives, it regurgitates the words of computer experts, who explain how the tubes of the internet actually work. Most of us don’t know, or care, how it actually works, and we’re just pretty happy that we can watch funny kitten videos on Youtube from our cellphones. It’s a miracle. It’s less of a miracle should your life be laid out before you from your search history and emails.
The fact that neither our courts nor our legislators feel particularly concerned at how privacy has been eviscerated by a doctrine that makes no sense whatsoever in the digital age, and how the reasonable expectation of privacy of ordinary people died a quiet, but horribly painful death, left many to believe that there was no hope for the future of privacy. Google’s change of policy offers new, unanticipated hope.
That doesn’t mean, however, that private corporations will provide a public service by honoring the Constitution where governmental entities will not.
It was not immediately known whether other ISPs are traveling Google’s path when it comes to demanding probable-cause warrants for all stored content. But Google can seemingly grant more privacy than the four corners of the law allows because there’s been a string of conflicting court opinions on whether warrants are required for data stored on third-party servers longer than 180 days. The Supreme Court has never weighed in on the topic — and the authorities are seemingly abiding by Google’s rules to avoid a high court showdown.
Whether that last sentence is accurate is doubtful. It’s hard to imagine the FBI shaking in its boots at the idea of Justice Scalia becoming a champion for internet privacy. Rather, the question is whether Google’s refusal to honor “requests” in the form of a disconnected subpoena will subject it to sanctions. The principled stance taken by Google may crumble if fines start piling up, or even incarceration of the Jolly Good Fellow for contempt.
As for others Internet Service Providers, they may wait to see what happens to the 800 pound gorilla of the internet before deciding whether to stare down the government. Or they may be more than happy to be compliant servants of law enforcement, offering up whatever they have and sending a box of donuts along for good measure. It never hurts to have friends in high places. With full stomaches.
For now, at least, Google has decided not to play the game any longer. If the government has a warrant, they will honor it as the law requires. But without a warrant, the government can stick it. That’s guts.
For quite a long time now, the argument has raged over whether the Fourth Amendment protects our digital lives from unfettered intrusion by the government. The fight has not gone particularly well for privacy, and the foremost scholar on the subject, Orin Kerr, has not been particularly supportive of what most people reasonably believe to be private.
And so Google has decided not to play the government’s game as a matter of principle. Well done, Google. You are a jolly good fellow, which nobody can deny.