When you write a letter, seal it in an envelope, and drop it in the mail, federal law is clear that it’s a private document. No government agent can legally open it up and read it without a warrant demonstrating probable cause under the Fourth Amendment. But really, when was the last time you sent anybody a letter?
In the age of ubiquitous electronic communication, it may seem surprising that the rules aren’t nearly as clear-cut when it comes to email. The American Civil Liberties Union recently received documents in response to a round of Freedom of Information Act requests submitted to a handful of federal agencies, in a bid to determine whether the feds universally obtain warrants to access private email records to aid in criminal investigations. The Sixth Circuit Court of Appeals ruled in 2010 that the federal government does indeed need a warrant before accessing individuals’ private email messages – but that ruling only applies in four states covered by the Sixth Circuit (and California isn’t one of them).
“Our FOIA request was the FBI’s chance to produce any policy documents, manuals, or other guidance stating that a warrant is always required,” ACLU Staff Attorney Nate Wessler noted in a recent blog post . “But they failed to do so. Instead, the documents we received strongly suggest that the FBI doesn’t always get a warrant.”
In what Wessler terms a “patchwork of policies” that seemingly differ case by case and agency by agency, certain branches of the FBI interpret federal law to mean that they don’t need warrants in order to access emails that have already been opened, or emails that have been saved for 180 days or longer.
To get this information, agencies either issue a subpoena to the company that provides the email service, or secure a kind of court order, which is weaker than a warrant, demanding that the service provider share any messages that may be “relevant and material to an ongoing investigation,” Wessler explains.
Amid all the confusion and secrecy surrounding government requests for private emails, some tech companies have adopted a practice of challenging requests not accompanied with a warrant. “Some of the biggest email providers are pushing back,” Wessler says, adding that Google, Yahoo, Microsoft, Facebook and Twitter all have good track records in this regard. “They have told federal law enforcement that they’ll only provide emails when they receive a probable cause warrant.” (Go here  for the Electronic Frontier Foundation’s detailed rundown of which major tech companies exercise good privacy practices.)
But for every gold-star worthy company, there are scores of others who will just cave under pressure – and since these orders are walled off from public access, it’s nearly impossible to know how vague or detailed these information requests are, or for that matter, how company challenges to warrantless government requests ultimately pan out.
The ACLU and other civil liberties advocates are focused on reforming a federal law, the Electronic Communications Privacy Act, to require the government to treat email just like snail mail, by obtaining warrants to access any kind of electronic message regardless of when it was sent or whether it’s been opened. As Wessler notes, “it shouldn’t be that we have to rely on corporate entities to enforce our Fourth Amendment rights.”