Electronic searches based on old law raise questions

There is something essentially wrong when the government can obtain access to electronic communications under a process that is so secret that the target of the access doesn’t know what’s happening and third parties who get dragged into the warrant are forced to fight the government in secret.

It only adds to the conundrum when the law under which the warrants are being issued was written before the World Wide Web came into existence.

It’s as if speed limit laws written in horse-and-buggy days were applied to the automotive age. The method of conveyance has changed, the speed at which travel is possible has changed, but the old rules apply. This issue has come to the fore in recent days thanks to the reporting of the Wall Street Journal in a case involving Jacob Appelbaum, a volunteer for WikiLeaks, which publishes documents anonymously.

Indiscriminate exposure

It is difficult for many people to defend the breadth of the material made available through WikiLeaks. It became a target of the Obama Justice Department last year after it published thousands of government documents, some classified, sensitive and embarrassing.

Be that as it may, in this case two players in electronic communications, the giant Google Inc, and a small Internet provider, Sonic.net Inc., received sealed orders to turn over information from the email accounts of Appelbaum covering a two-year period. The government sought email addresses, not the actual texts.

Google and Sonic fought the requests and asked permission to inform Appelbaum of the government’s demand, without success. Appelbaum has not been charged or indicted, but that means little since the federal government is notoriously methodical and prosecutors work at no timetable other than their own.

It may eventually turn out that Appelbaum broke the law and did so in ways that were injurious to the national defense. Or not.

But aside from the government’s penchant for proceeding slowly, it is also known to take a position that once pursuit of a criminal case gives it access to information, it is free to use that information to develop other cases, even if totally unrelated. In other words, the hundreds or thousands of people with whom Appelbaum communicated have to worry about more than simple guilt by association.

Time for a review

The case raises a number of interesting issues, but the one that is most clear is this: decades-old laws covering electronic communications need a second look in the 21st century.

The 1986 Electronic Communications Privacy Act is due for an overhaul. As the Journal reports, a coalition of technology companies — including Google, Microsoft Corp. and AT&T Corp. — has been lobbying for changes, especially regarding the need for search warrants in more digital investigations.

While we’d agree that Congress’ first priority should be jobs, jobs, jobs, it is clear that it is not taking that mandate seriously. In the meantime it is expending time and resources on issues of far less importance than preserving Americans’ right to be free of unwarranted searches and seizures — electronic or otherwise.