No Warrant, No Problem: How The Government Can Still Get Your Digital Data

A large majority are aware that privacy is a legal right protected by stringent laws here in Nevada and the U.S. An officer of the law cannot indiscriminately eavesdrop on your phone conversations without judicial authorization. But that’s just one aspect of surveillance.

Nonetheless, a myriad of lawful methods exist that permit law enforcement agencies, such as the FBI or Police Officers, to wiretap your phone, google your email, and listen to your phone calls even without you knowing. In this piece, we list a myriad of ways law enforcement agencies can legally monitor & observe your digital data and how they navigate the boundaries set by legal standards.

Phone call records, Cloud Data, and text messages 

Let’s start with phone calls, text messages, and photos saved in the cloud. Obtaining phone call metadata, let’s say your recent numbers dialed, call durations, and sms, doesn’t require such rigorous substantiation – they [police officers] only need to procure a signature on a subpoena from a court. They only need to demonstrate that the records are pertinent to an ongoing investigation. This applies to cloud data such as Documents, Photos, images, and Other Stuff Stored Online.

In fact, a recent post from The New York Times highlighted a case in New York, revealing that the local police department had been quietly collecting vast amounts of call records using subpoenas. These were allegedly lost phones.

Location & IP Address 

Digital tracking makes a person’s location no mystery. Courts have frequently determined that a judicial warrant is unnecessary for police to access cell phone location information. Instead, officials must demonstrate adherence to the Electronic Communications Privacy Act (ECPA) by proving that the data holds “specific and articulable facts” pertinent to an ongoing investigation. The same procedure applies to fetching your IP.

Emails and Email Draft 

When it comes to email, things change a bit. Police officers can’t just access your recent emails on a whim using court-signed warrants. Instead, they require appropriate judicial consent to access emails, particularly recent or stored ones. Emails that are not older than 180 days are protected under stricter privacy laws, necessitating a Judge’s warrant.

However, emails surpassing this 180-day threshold are subject to lesser protections, requiring only a court to issue a subpoena. Again, we all know email drafts are exposed to even less stringent scrutiny. They are categorized as stored electronic data rather than active communication.

This categorization permits authorities to obtain them simply with a subpoena, bypassing the more rigorous requirements of securing a warrant. This distinction places email drafts in a precarious position, wherein they are more susceptible to legal access.

Social Media

Social media networks, for instance, play a pivotal role in shaping the landscape of digital surveillance. However, there is a split between how different platforms manage data requests from authorities. Facebook adheres to a policy requiring judicial warrants to disclose intricate user details like personal messages, photographs, videos, and location details.

In contrast, simpler information like an email address or IP address tied to recent account access can be released under a subpoena without a warrant. Twitter, on the other hand, says they are adherent to any legal requirements such as court orders, subpoenas, or valid legal procedures before relinquishing non-public user information.

The judiciary, however, has yet to offer conclusive guidance regarding social media compliance.