Yesterday’s revelations by the Wall Street Journal about secret court orders obtained by the US government forcing Google and Sonic.net, an Internet Service provider, to surrender details of the email accounts of WikiLeaks volunteer Jacob Appelbaum has revived the debate about use of the 1986 Electronic Communications Privacy Act (ECPA).
According to the newspaper, the Department of Justice obtained orders on 4 January and 15 April requiring Google and Sonic to hand over the IP addresses and email addresses of all of Appelbaum’s contacts since November 2009.
One of the developers of Tor, a free software programme for ensuring online anonymity, Appelbaum became a public advocate for WikiLeaks in July 2010. The secret orders were obtained under the ECPA as part of the investigation into the massive leak of US diplomatic cables that have been posted on the WikiLeaks website.
The same procedure was used to obtain a court order on 11 March forcing Twitter to release information about the accounts of Appelbaum and two other prominent WikiLeaks supporters, Birgitta Jonsdottir and Rop Gonggrijp.
The WikiLeaks investigation has become a testing ground for new interpretation of the ECPA, a law that was created before the public Internet existed. It is now being used to obtain emails, mobile phone location records and other digital documents without a search warrant and without prior evidence that any crime has been committed.
The government only has to show “reasonable grounds” that the information sought would be “relevant and material” to its investigation. The persons targeted are not told that their records are being surrendered because the court orders are sealed and Internet Service Providers are forbidden to notify their clients.
“The Electronic Communications Privacy Act represents a major infringement of the confidentiality guarantees that every Internet user expects,” Reporters Without Borders said. “As used against WikiLeaks and one of its representatives, it has taken on the character of a special procedure that violates the basic rights that anyone being investigated should enjoy.
“We urge Internet Service Providers not to comply with the government requests and we call on the government to public justify the ‘relevance’ of the information it is seeking. Is the least email exchange with Jacob Appelbaum now under suspicion?”
Under an initiative dating back to 2009 called Google Transparency Report, Google reports the number of requests for information about users that it receives from governments around the world. The US government tops the list, with 4,601 requests received by Google in the second half of 2010. Google complied with 94 per cent of them.
Adopted in an era when information was stored on desktops, not online, the ECPA is now totally outmoded and a coalition of new technology companies including Google and Microsoft have been pressing Congress to overhaul it. Senate hearings were held in April and May without any amendments being approved.
Questions are also being raised about the ECPA’s constitutionality. A federal court of appeals ruled in December 2010 that the government violated the Fourth Amendment when it obtained emails without a search warrant.