Online communications and criminal investigation, P.2

Last time, we began speaking about privacy rights in the context of criminal investigations involving online communications. As we pointed out, federal law currently does not require investigators to obtain a warrant for email and other online communications which are 180 days old. Federal courts have taken different positions as to what exactly the Constitution requires when it comes to police accessing email communications and when people lose privacy protections with email.

As of earlier this month, over 300 members of the House of Representatives have signed to cosponsor the Email Privacy Act. Under the proposal, police would be required to obtain a search warrant prior to accessing not only email communications, but also Facebook messages and other private online content. The bill would obviously change the way investigators go about their work, making it easier for them to gain access to such communications. 

The problem with the proposal is that bill does not yet have the support of the House Judiciary Committee’s chairman, Rep. Bob Goodlatte. His concern is that the bill would prevent law enforcement from doing their job, and could entail public safety risks since the law requires that criminal suspects be served with the warrant rather than just the suspect’s email provider. In addition, some congressional and administrative agencies would be hampered in their ability to conduct investigations since they don’t have access to criminal warrants. It remains to be seen how these objections will be addressed, and whether the proposal will make it out of committee. As it stands, the bill has a lot of support, but not the support it really needs to move forward, and not much is going to happen unless some changes are made.

Privacy issues, as we’ve noted, are important to explore in building a strong criminal defense. Working with an experienced criminal defense attorney ensures that one thoroughly explores any such issues in one’s case.  

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