FBI thinks they don’t need warrants to spy on email, Facebook and other electronic communication
By End the Lie
New documents reveal that the Department of Justice takes a similar stance to that of the IRS in claiming that they do not necessarily need warrants to spy on emails, Twitter direct messages, Facebook chats and other private communications of Americans.
In the case of the IRS, the head of the agency said last month that they would abandon their policy that claimed the authority to read the emails of Americans without a warrant. However, the agency did not say that they would extend the new policy to all private electronic communications.
The fact that the two guides both say that FBI agents don’t need a warrant for unopened emails or other electronic communications if they’re over 180 days old is incredibly important.
Between the time the two guides were published, the Sixth Circuit Court of Appeals ruled in the United States v. Warshak case. That ruling states that the government has to obtain a probable cause warrant before they force email providers to hand over messages to law enforcement.
Unfortunately, as the ACLU points out, that decision only applies in the four states covered by the Sixth Circuit.
Therefore, the ACLU filed their Freedom of Information Act (FOIA) request “to find out whether the FBI and other agencies are taking advantage of a loophole in the outdated Electronic Communications Privacy Act (ECPA) that allows access to some electronic communications without a warrant. Distressingly, the FBI appears to think the Fourth Amendment’s warrant requirement doesn’t always apply.”
The 2012 guide, which was published two years after the Warshak decision, does not so much as mention the ruling nor does it mention that the Fourth Amendment might in fact require a warrant before any email can be read.
“In enacting the ECPA, Congress concluded that customers may not retain a “reasonable expectation of privacy” in information sent to network providers,” the 2012 DIOG states.
“[I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the e-mail has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment,” the guide continues.
However, the FBI claimed that they’re just following the law and the guidelines set for them.
“In all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines,” the FBI said in a statement, according to CNET. “Our field offices work closely with U.S. Attorney’s Office to adhere to the legal requirements of their particular districts as set forth in case law or court decisions/precedent.”
“Our FOIA request was the FBI’s chance to produce any policy documents, manuals, or other guidance stating that a warrant is always required, but they failed to do so,” the ACLU states. “Instead, the documents we received strongly suggest that the FBI doesn’t always get a warrant.”
Interestingly, the ACLU notes that the fact that the FBI is reading some emails without a warrant has been confirmed in court.
Hidden within an opinion issued by a federal magistrate judge in Texas dealing with the FBI’s attempt to secretly infect a target computer with spyware is a statement which proves that this email surveillance indeed occurs without a warrant.
“[T]he Government also sought and obtained an order under 18 U.S.C. § 2703 directing the Internet service provider to turn over all records related to the counterfeit email account, including the contents of stored communications,” the opinion states.
That means, “as recently as March of this year, the FBI went after emails without a warrant. This is an affront to the Fourth Amendment,” according to the ACLU.
The IRS’s policy was sharply criticized in a letter signed by a dozen Republican and Democratic senators last month. “We believe these actions are a clear violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures,” the senators said.
Will similar outcry be heard now that we know the Department of Justice thinks similar activities are permissible under the law? Only time will tell.
On top of the FBI documents, the ACLU obtained records from six offices of U.S. Attorney sin California, Florida, Illinois, Michigan and New York.
They also obtained documents from the Department of Justice’s Criminal Division, which gives legal advice to both federal prosecutors and law enforcement agencies. Unfortunately, the Criminal Division actually withheld more documents than they released to the ACLU.
The documents from these offices revealed “a confusing picture of federal policy,” as the ACLU puts it.
The ACLU only received two paragraphs from the U.S. Attorney for the Southern District of New York. The paragraphs are from an unidentified document with no cover page or any contextual information, making it impossible to know if it reflects current policy.
However, the document states that law enforcement can obtain “opened electronic communications or extremely old unopened email” without a warrant.
Excerpts from an October 2012 document from the U.S. Attorney for the Northern District of Illinois states that a warrant is indeed required for text messages, voicemails, emails, Facebook communications and “private tweets” on Twitter, showing that there is a clear difference between offices.
However, the document does not have explanatory information or a cover page, making it impossible to know if it is considered binding policy for prosecutors or how broadly the procedures are applied.
While the ACLU states that the “six U.S. Attorneys’ offices also told us in this email that since Warshak, they have not authorized a request to a court for access to the contents of electronic communications without a warrant,” the Texas magistrate judge’s opinion shows that at least one U.S. Attorney’s office authorized such a request this year.
Suffice it to say, even with the documents obtained by the ACLU, “the government’s actual position is far from clear.”
Indeed, it is rife with contradictions and policies that vary from office to office with no clear federal policy holding to the Fourth Amendment.
The ACLU and many other groups contend that Congress needs to reform the ECPA in order to make it abundantly clear that a warrant is indeed required for law enforcement to access all electronic communications.
“Reform legislation is making its way through the Senate now, and the documents released by the U.S. Attorney in Illinois illustrate that the law can be fixed without harming law enforcement goals,” the ACLU states. “If you agree that your email and other electronic communications should be private, you can urge Congress to take action here.”
Indeed, even though the Senate Judiciary Committee unanimously passed the ECPA reform legislation, much is left to be done. Without taking action, no one can have any legitimate expectation of any change whatsoever.
UPDATE: Sen. Mark Udall is now taking the Justice Department to task over this new revelation. “I am extremely concerned that the Justice Department and FBI are justifying warrantless searches of Americans’ electronic communications based on a loophole in an outdated law that the U.S. Court of Appeals for the 6th Circuit ruled was unconstitutional,” Udall said to CNET. Maybe they will respond in a somewhat similar manner to the IRS but that would still leave a great deal to be desired.
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