The American Civil Liberties Union just published a summary of their findings after a Freedom of Information Act request supplied them with the FBI’s Domestic Investigations and Operations Guide (DIOG) from 2008 and 2012.
The ACLU calls their findings “distressing.”
From the 2012 guide:
In enacting the 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.
ACLU staff attorney Nathan Freed Wessler wrote up a summary of what these findings mean for civilians on the organization’s website:
[T]hese records show that federal policy around access to the contents of our electronic communications is in a state of chaos. The FBI, the Executive Office for U.S. Attorneys, and DOJ Criminal Division should clarify whether they believe warrants are required across the board when accessing people’s email. It has been clear since 1877 that the government needs a warrant to read letters sent via postal mail. The government should formally amend its policies to require law enforcement agents to obtain warrants when seeking the contents of all emails too.More importantly, Congress also needs to reform ECPA to make clear that a warrant is required for access to all electronic communications. Reform legislation is making its way through the Senate now, and the documents released by the U.S. Attorney in Illinois illustrate that the law can be fixed without harming law enforcement goals.
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