FBI Still Doesn't Think It Needs A Warrant To Read Your Email, Despite Court Ruling To The Contrary

from the of-course-not dept

The ACLU has continued its campaign to explore whether or not the government gets a warrant before scouring your email. Last month, they discovered that the IRS doesn't believe in getting a warrant -- leading to the IRS promising to change that policy. Now they've received some documents from the FBI in response to a FOIA request that again suggest that, despite the ruling in US v. Warshak, in which the 6th Circuit said that a warrant is needed to compel an ISP to turn over emails, the FBI believes it can access emails older than 180 days without a warrant, under ECPA. As we've discussed at length, ECPA (the Electronic Communications Privacy Act) is a very outdated piece of legislation which considers emails on a server over 180 days to be "abandoned" because no one considered a cloud computing future.

What the ACLU found in these documents is that the FBI hasn't updated its Domestic Investigations and Operations Guide (DIOG) in response to the Warshak ruling, and it still suggests that agents can easily access such emails without a warrant. Instead, it says:

In enacting the ECPA, Congress concluded that customers may not retain a “reasonable expectation of privacy” in information sent to network providers. . . [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.

That's a... charitable interpretation of reality. That's what Congress felt back then, but based on a very different network setup. However, as the courts noted in Warshak, the 4th Amendment is still important and still rules.

The ACLU also asked different US Attorney's offices for their guidelines, and found that policies differed greatly based on location. Northern Illinois, for example, seemed to recognize the 4th Amendment. But others, including in Texas, still seem to think that no warrant is required. As the ACLU notes, this hodgepodge of rules and the fact that the FBI hasn't changed its guidelines in response to Warshak just highlights the need for comprehensive ECPA reform.

If nothing else, these records show that federal policy around access to the contents of our electronic communications is in a state of chaos. The FBI, the Executive Office for U.S. Attorneys, and DOJ Criminal Division should clarify whether they believe warrants are required across the board when accessing people’s email. It has been clear since 1877 that the government needs a warrant to read letters sent via postal mail. The government should formally amend its policies to require law enforcement agents to obtain warrants when seeking the contents of all emails too.

More importantly, Congress also needs to reform ECPA to make clear that a warrant is required for access to 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. If you agree that your email and other electronic communications should be private, you can urge Congress to take action here.

Filed Under: 4th amendment, ecpa, ecpa reform, email, fbi, privacy, warshak
Companies: aclu