Keystone Cops Subpoena Google For Facebook's Data

Email privacy is a tangled subject: the Electronic Communication Privacy Act (ECPA) governing when the police or FBI can read your messages was written in 1986, the Justice Department is loathe to release details on how often it is used, and the underlying technology is always changing.

But at a panel in Washington on Tuesday, Google's chief privacy lawyer did drop a depressing and revealing factoid about how law enforcement is actually using its subpoena and warrant powers to get information on who you message and what you send.

"I can't tell you how many requests we get for Facebook," said Richard Salgado, director of law enforcement and information security for Google. That's right -- some of the cops supposed to be taking great care to craft narrow subpoenas can't even tell the difference between a Facebook Message and a Google Chat.

Salgado's revelation elicited laughs from the crowd of computer geeks and information privacy hawks at the Congressional Internet Caucus's State of the Net conference. They were gathered for a panel investigating why and how law enforcement was able to gain access to the emails that exposed former CIA Director David Petraeus's sex scandal. But it could also point to widespread misuse of law enforcement powers when it comes to email.

As Salgado also pointed out during the panel, Google is faced with the "bad combination" of a high demand of information requests from law enforcement (7,969 from just January to June 2012) and the taxing amount of care to protect its users' privacy and Constitutional rights.

If Salgado's telling of the effort his company puts into screening information requests from cops is correct, then Gmail users should feel a little relieved. The company has generally gotten kudos from civil liberties advocates for pushing back when authorities make requests that are too broad or too invasive. According to its latest privacy report, it declined to comply with about 10 percent of law enforcement requests -- a number that surprised Michael Vatis, a former Department of Justice official also on the panel.

But as Kevin Bankston, senior counsel and director of the Free Expression Project at the Center for Democracy & Technology, pointed out, there is an "utter lack of transparency" around how often other providers are getting pumped for information by law enforcement. The federal court system publishes an annual report on how often traditional telephone wiretaps are used. But when email subpoenas or warrants are involved, we're playing a guessing game -- and we generally have no idea how often providers not named Google fight back for their users' rights.