First the US Internal Revenue Service claimed it didn’t need probable-cause warrants to read anyone’s email. Now the US Department of Justice claims its Federal Bureau of Investigation (FBI) manuals — which were updated as recently as 2012 — claim no probable-cause warrant is necessary for the law enforcement agency to surveil citizens’ email, Twitter direct messages, Facebook chats, and even private digital files.
According to Declan McCullagh, writing for CNET, “Justice Department prosecutors and investigators privately [insist] they’re not legally required to obtain search warrants for email.” The documents were obtained by the American Civil Liberties Union (ACLU) in response to a Freedom of Information Act (FOIA) request. McCullagh cites two specific instances of warrantless surveillance by US attorneys:
“The US 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 US 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.”
United States District Court, S.D. Texas, Houston Division. In re WARRANT TO SEARCH A TARGET COMPUTER AT PREMISES UNKNOWN. No. H-13-234M.
In response to a judge’s request — prompted by the ACLU — of six of the 93 US Attorney offices, not all of the surveyed US attorneys use warrantless email surveillance.
In 2010, US Sixth Circuit Court of Appeals ruled (.pdf; 271.3KB) that warrantless surveillance of email (first item in Privacy section) is a violation of the Fourth Amendment to the US Constitution, striking down part of the Stored Communications Act.
Update Thursday, 16 May 2013 3:34PM CDT: US Attorney General Eric Holder, testifying before the US House Judiciary Committee, said the government should be required to obtain probable-cause warrants to surveil email and other cloud-based content. Under the Electronic Communications Privacy Act (ECPA), the government need only obtain a subpoena signed by a prosecutor to access anyone’s email that has been stored for more than 180 days. The US Senate Judiciary Committee has passed a proposed ECPA amendment that would require law enforcement agencies to obtain a probable-cause warrant to access email, social media posts, and other information stored in the cloud, regardless of the age of the information.
