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1. Phone Records: Who You Called, When You Call
How they get it
Listening to your phone calls without a judge's warrant is illegal if you're a U.S. citizen. But police don't need a warrant — which requires showing "probable cause" of a crime — to get just the numbers you called and when you called them, as well as incoming calls, from phone carriers. Instead, police can get courts to sign off on a subpoena, which only requires that the data they're after is relevant to an investigation — a lesser standard of evidence.
What the law says
Police can get phone records without a warrant thanks to Smith v. Maryland, a Supreme Court ruling in 1979, which found that the Constitution's Fourth Amendment protection against unreasonable search and seizure doesn't apply to a list of phone numbers. The New York Times reported last week that the New York's police department "has quietly amassed a trove" of call records by routinely issuing subpoenas for them from phones that had been reported stolen. According to The Times, the records "could conceivably be used for any investigative purpose."
2. Location Data: Your phone is a tracker
How they get it
Many cell phone carriers provide authorities with a phone's location and may charge a fee for doing so. Cell towers track where your phone is at any moment; so can the GPS features in some smartphones. The major cell carriers, including Verizon and AT&T, responded to at least 1.3 million law enforcement requests for cell phone locations, text messages and other data in 2011. Internet service providers can also provide location data that tracks users via their computer's IP address — a unique number assigned to each computer.
What the law says
Many courts have ruled that police don't need a warrant from a judge to get cell phone location data. They only have to show that, under the federal Electronic Communications Privacy Act (EPCA), the data contains "specific and articulable facts" related to an investigation — again, a lesser standard than probable cause. Delaware, Maryland and Oklahoma have proposed laws that would require police to obtain a warrant for location data; Gov. Jerry Brown of California, a Democrat, vetoed a similar bill in September. Last week, the Senate Judiciary Committee approved a bill championed by Sen. Patrick Leahy, D-Vt., to update the ECPA, but it would not change how location data is treated.
3. IP Addresses: What computers you use
How they get it
Google, Yahoo, Microsoft and other webmail providers accumulate massive amounts of data about our digital wanderings. A warrant is needed for access to some emails (see below), but not for the IP addresses of the computers used to log into your mail account or surf the Web. According to the American Civil Liberties Union, those records are kept for at least a year.
4. Emails: Messages you sent months ago
How they get it
There's a double standard when it comes to email, one of the most requested types of data. A warrant is needed to get recent emails, but law enforcement can obtain older ones with only a subpoena. Google says it received 7,969 requests for data — including emails sent through its Gmail service — from U.S. law enforcement in the first half of 2012 alone. Other email providers have not made similar statistics available.
7. Cloud data: documents, photos, and other stuff stored online
How they get it
Authorities typically need only a subpoena to get data from Google Drive, Dropbox, SkyDrive, and other services that allow users to store data on their servers, or "in the cloud," as it's known.
What the law says
The law treats cloud data the same as draft emails — authorities don't need a warrant to get it. But files that you've shared with others — say, a collaboration using Google Docs — might require a warrant under the ECPA if it's considered "communication" rather than stored data. "That's a very hard rule to apply," says Greg Nojeim, a senior counsel with the Center for Democracy & Technology. "It actually makes no sense for the way we communicate today."
What the law says
The ECPA also applies to text messages, according to Hanni Fakhoury, a lawyer with the Electronic Frontier Foundation, which is why the rules are similar to those governing emails. But the ECPA doesn't apply when it comes to actually reading texts on someone's phone rather than getting them from a carrier. State courts have split on the issue. Ohio's Supreme Court has ruled that police need a warrant to view the contents of cell phones of people who've been arrested, including texts. But the California Supreme Court has said no warrant is needed. The U.S. Supreme Court in 2010 declined to clear up the matter.
8. Social media: The new privacy frontier
How they get it
When it comes to sites like Facebook, Twitter and LinkedIn, the social networks' privacy policies dictate how cooperative they are in handing over users' data. Facebook says it requires a warrant from a judge to disclose a user's "messages, photos, videos, wall posts, and location information." But it will supply basic information, such as a user's email address or the IP addresses of the computers from which someone recently accessed an account, under a subpoena. Twitter reported in July that it had received 679 requests for user information from U.S. authorities during the first six months of 2012. Twitter says that "non-public information about Twitter users is not released except as lawfully required by appropriate legal process such as a subpoena, court order, or other valid legal process."
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