Despite widely held assumptions by the US public that a search warrant would be needed in order for law enforcement officials to search personal email accounts, newly discovered documents obtained by the American Civil Liberties Union, reveal just how far off those assumptions have become.
As was reported last week, the U.S. government has rarely, if ever, been denied a warrant for electronic documents access—as such warrants are approved by "surveillance requests in secret" inside a court known as the Foreign Intelligence Surveillance Court (the “FISC”).
However, ACLU's new revelation shows that this rigged system of surveillance requests may, in fact, be unnecessary as the entire warrant process is commonly waved.
The documents obtained by the ACLU and provided to CNET include a recently updated "FBI investigation manual," which shows that FBI agents only need a warrant for emails or other electronic communications that are unopened and less than 180 days old.
The ACLU reports:
Versions of the Guide from 2008 and 2011 are available on the FBI website, but the 2012 edition has not previously been made public. We would have thought that by 2012, the FBI would have updated its policy to require a warrant for all private electronic communications. 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. Instead, the documents we received strongly suggest that the FBI doesn’t always get a warrant. [...]
In 2010, the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages to law enforcement. But that decision only applies in the four states covered by the Sixth Circuit, so we filed our FOIA request to find out whether the FBI and other agencies are taking advantage of a loophole in the outdated Electronic Communications Privacy Act (ECPA) that allows access to some electronic communications without a warrant.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.
Other documents obtained by the ACLU include files from six U.S. Attorneys’ offices (in California, Florida, Illinois, Michigan, and New York), and documents from the Justice Department’s Criminal Division, which all reveal conflated and unregulated surveillance practices, revealing that, according to Nathan Wessler, the ACLU staff attorney who obtained the documents, "federal policy around access to the contents of our electronic communications is in a state of chaos."
As CNET reports:
The U.S. Attorney for Manhattan circulated internal instructions, for instance, saying a subpoena -- a piece of paper signed by a prosecutor, not a judge -- is sufficient to obtain nearly "all records from an ISP." And the U.S. Attorney in Houston recently obtained the "contents of stored communications" from an unnamed Internet service provider without securing a warrant signed by a judge first.
The ACLU adds:
The Criminal Division [DOJ] withheld far more documents than it released. The U.S. Attorneys’ office documents reveal some information, but paint a confusing picture of federal policy. We received two paragraphs from the U.S. Attorney for the Southern District of New York—part of an unidentified document stating that law enforcement can obtain “opened electronic communications or extremely old unopened email” without a warrant. Perplexingly, the agency has not released the cover page or other contextual information from this document, so we don’t know whether it reflects the current policy of that office. [...]
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. But according to the recent Texas magistrate judge’s opinion, one U.S. Attorney’s office apparently authorized such a request this year. Even with today’s documents, the government’s actual position is far from clear.
In all, the documents obtained by the ACLU reveal a culture of "chaos" surrounding electronic communications surveillance, which breeds impunity for agencies such as the FBI looking to check in on your email.
"We really can't have this patchwork system anymore, where agencies get to decide on an ad hoc basis how privacy-protective they're going to be," Wessler states. "Courts and Congress need to step in."
Read CNET's full article here.
Read the ACLU's report here.