The American Civil Liberties Union (ACLU) has received documents in response to a Freedom of Information Act (FOIA) request that provide details on FBI and Justice Department policies, which appear to suggest the federal authorities can read emails without obtaining a warrant.
The FBI provided a copy of a 2012 Domestic Investigations and Operations Guide (DIOG) that had not been made public. It contained nothing about the Fourth Amendment requiring a warrant for all emails. It stated that in enacting the Electronic Communications Privacy Act (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.
Staff attorney for the ACLU, Nathan Wessler, told Firedoglake that this was “the FBI’s opportunity to provide to us any new documents or any new statements to their agents explaining whether the Fourth Amendment applies to emails and other electronic communications.” The documents show the FBI continues to advise agents that they can obtain emails without a warrant.
As Wessler pointed out, the 2012 guide was “written two and a half years after a federal court of appeals explained the Fourth Amendment requires warrants for all emails because their contents are just as private as our letters or our phone calls.”
Wessler is referring to the Warshak decision. The judge found, “The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause,” and also concluded, “It only stands to reason that, if government agents compel an [Internet Service Provider] to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.”
This is not merely suggested policy. In March of this year, a federal magistrate judge’s opinion indicated the FBI and US Attorney’s office in Texas had sought and obtained an order from a judge to obtain the contents of emails without a warrant.
“Those orders are generally sealed. Very rare for the public to see one of those applications to get at peoples’ email without a warrant, but here we have a federal judge in the public record making reference that it happened,” Wessler said.
The ACLU had sought policy guides, manuals or other documents that “set out the actual procedures of law enforcement agencies.” The criminal division of the Justice Department provided 500 pages of documents. “Most are uninteresting photocopies of judicial opinions that are already public,” according to Wessler. (Such a response actually makes a mockery of the FOIA process; obviously, the ACLU was not recruiting the DoJ to do research of what was in the public domain.)
The Justice Department withheld over 6,000 pages of documents. The ACLU will receive explanations at the end of the month for why certain documents explaining policies on access to emails were withheld. They will decide then whether to go to the courts to get documents that were improperly withheld released.
In addition to the 2012 guide, the ACLU obtained documents from the Executive Office of US Attorneys (EOUSA) that came from the Northern District of Illinois. The documents contained a chart that showed the policy for obtaining access to each type of communication. However, information in the chart was censored and withheld, such as details on “search warrant protocol.” So, the ACLU filed a FOIA request for that entire chart.
The ACLU had previously uncovered information through FOIA requests that showed the Internal Revenue Service (IRS) was reading citizens’ emails without a warrant. In April, Wessler noted the IRS might advise agents to seek a warrant for emails in order to avoid “protracted litigation,” not because it had any concern over violating a person’s Fourth Amendment rights.
“The FBI and other federal law enforcement agencies are going to seek the greatest latitude they can in accessing people’s private communications,” Wessler concluded. The latest documents obtained by ACLU “underline the need for Congress to step in and set clear rules that apply across the board to protect all of emails and all of our text messages and all of our other communications, regardless of how old they are or if they’ve been opened.”
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