Government Policy on Email Surveillance in “State of Chaos”

Email surveillance is in a “state of chaos”

Photo by Oli Scarff/Getty Images

Can the FBI obtain Americans’ emails without a warrant? That depends on which branch of the government you ask—because federal policy on electronic communications is in a “state of chaos,” according to the ACLU.

The civil liberties group today published a new series of documents, obtained under the Freedom of Information Act, that demonstrate how confused and contradictory guidance on email snooping is. One of the documents, a 2012 FBI operations guide, advises agents that they can exploit a controversial loophole contained in the Electronic Communications Privacy Act in order to obtain email older than 180 days without a search warrant. The guide states that Americans do not have a reasonable expectation of privacy over unopened emails older than six months—and that therefore the bureau can get its hands on the emails “without running afoul of either the Fourth or Fifth Amendment.”

The FBI’s interpretation of the ECPA loophole appears almost identical to guidance the Internal Revenue Service was issuing its investigators, revealed separately by the ACLU last month. But this is a highly contentious reading of the law, because in 2010 an appeals court judgment held in United States v. Warshak that email was protected by the Fourth Amendment and that government agents should obtain a probable cause warrant from a court before compelling email providers to hand over users’ messages—regardless of the age of the communications.

The ACLU said Wednesday that it had contacted six U.S. attorneys’ offices to clarify their stance on the issue. The group was told in an email that the attorneys—in California, Florida, Illinois, Michigan, and New York—confirmed they had not, since the Warshak ruling, “authorized a request to a court for access to the contents of a person’s private electronic communications for law enforcement purposes without a warrant or on a standard less than probable cause.” However, the ACLU points out that as recently as March the FBI tried to obtain historic email content without a warrant as part of an investigation in Texas—which suggests there is no blanket rule that is being adhered to across all states.

The FBI told me in an emailed statement that it obtains “evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines,” adding that “[o]ur 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.”  But the bureau did not directly answer whether it would, as a matter of blanket policy, always get a search warrant when obtaining emails no matter how many days old they are.

It seems inevitable, though, that the lack of clarity is likely to be extinguished before long. ECPA reform legislation currently moving through Congress would close the 180-day loophole. Late last month, the proposed privacy-enhancing law was passed unanimously by the bipartisan Senate judiciary committee, and it is now set to go to the floor for a full Senate vote. It bodes well for the prospective reform that even the Justice Department has backed a tightening of the rules—with a DOJ official agreeing earlier this year during a hearing that there is “no principled basis to treat email less than 180 days old differently than email more than 180 days old.”