Recently released documents suggest that according to the FBI’s Domestic Investigations and Operations Guide, the bureau can read your e-mail without having a warrant.
This Wednesday, ACLU (the American Civil Liberties Union) published a copy of 2012’s edition of FBI’s DIOG upon a FOIA (Freedom of Information Act) request. According to it, the bureau can basically read your e-mail whenever it sees fit and without a warrant.
126.96.36.199.4.3 (U) MAIL OPENINGS
(U) Mail in United States postal channels may be searched only pursuant to court order, or presidential authorization. United States Postal Service regulations governing such activities must be followed. A search of items that are being handled by individual couriers, or commercial courier companies, under circumstances in which there is a reasonable expectation of privacy, or have been sealed for deposit into postal channels, and that are discovered within properties or premises being searched, must be carried out according to unconsented FISA or FRCP Rule 41 physical search procedures.
188.8.131.52.4.4 (U) COMPELLED DISCLOSURE OF THE CONTENTS OF STORED WIRE OR ELECTRONIC COMMUNICATIONS
(U) Contents in “electronic storage” (e.g., unopened e-mail and voice mail) require a search warrant. See 18 U.S.c. § 2703(a). A distinction is made between the contents of communications that are in electronic storage (e.g., unopened e-mail) for less than 180 days and those in “electronic storage” for longer than 180 days, or those that are no longer in “electronic storage” (e.g., opened e-mail). In enacting the ECPA, Congress concluded that customers may not retain a “reasonable expectation of privacy” in information sent to network providers. However, the contents of an e-mail message that is unopened should nonetheless be protected by Fourth Amendment standards, similar to the contents of a regularly mailed letter. On the other hand, if 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 he 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. If a search warrant is used, it may be served on the provider without notice to the customer or subscriber.
Here’s a “translation” of what you’ve just read. Under the Electronic Communications Privacy Act (ECPA) – a privacy law that dates back to 1986 – law enforcement agencies can read your e-mail before being opened by the targeted person as long as a warrant exists. The problem is that once the e-mail is opened by that person, or hasn’t been opened for a period of 180 days, the need for a warrant is no longer in place. Two months ago, the US Department of Justice attended a Congressional hearing where it accepted the fact that ECPA needs to be revised. Moreover, the DOJ offered to support ECPA’s revisions.
To complicate things even further, one of the circuit court of appeals ruled that federal authorities need a warrant before accessing an e-mail address.
“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,” ACLU’s report reads.
Meanwhile, if you’re curious enough, you can find FBI’s DIOG for 2008 and 2011 on their official website.
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