Despite a federal appeals court ruling that government snooping on emails requires a search warrant, the FBI and other federal law enforcers regularly ignore this constitutional mandate, according to documents obtained by the American Civil Liberties Union under the Freedom of Information Act. At the same time that it acts as if it has the authority to violate the privacy of citizens’ emails, the FBI is seeking Congressional authorization for its unlawful activities.

It has been illegal for law enforcement to open sealed envelopes and packages in the U.S. mail since 1877, when the Supreme Court case of Ex Parte Jackson held that a warrant is required by the Fourth Amendment. It has also been illegal to snoop on ongoing electronic communications like phone calls without a warrant since the 1967 case of Katz v. U.S. Although emails have raised new issues that have yet to be entirely resolved, the Sixth Circuit Court of Appeals (which hears cases from Kentucky, Michigan, Ohio and Tennessee) ruled in Warshak v. U.S (2010) that opening emails requires a warrant based on probable cause.

According to the documents obtained by the ACLU, however, federal law enforcement, including the FBI, IRS and others, believes the warrant requirement does not apply to emails, and U.S. Attorneys’ offices around the country have issued inconsistent and even conflicting standards to the issue. The resulting confusion creates plenty of room for mischief.

The FBI’s 2012 Domestic Investigations and Operations Guide (DIOG), for example, states that agents need a warrant only for emails that are unopened and less than 180 days old, with no mention of the fact that this is directly contrary to the ruling in Warshak. Although Warshak applies only in the four states of the Sixth Circuit, the DIOG advice could place investigations at risk if other courts go along with Warshak, and it certainly directs agents in those four states to defy the law. 

Although documents received from the Justice Department Criminal Division and six U.S. Attorneys’ offices (in California, Florida, Illinois, Michigan, and New York) were heavily redacted and sometimes even unidentified, they reveal similar problems. Two paragraphs in an unidentified document from the U.S. Attorney for the Southern District of New York, for example, state that law enforcement can obtain “opened electronic communications or extremely old unopened email” without a warrant—but redactions make it impossible to tell if this is current policy or not.

On the other hand, an October 2012 document from the U.S. Attorney for the Northern District of Illinois states a warrant is required to obtain emails, citing the Warshak case. But like the document from New York, heavy redactions make identifying the document or its purpose impossible.

Although the six U.S. Attorneys’ offices told the ACLU that, since Warshak, they have not authorized an email search request without a warrant, a recent Texas case undermines that assertion. In that case, which mainly focused on the judge’s denial of the FBI’s request for a warrant to surreptitiously infect a computer with spyware, the feds also obtained an order—without a warrant—under 18 U.S.C. § 2703 (Stored Communications Act) forcing an Internet service provider to turn over the contents of an email account that had been used to commit fraud.

So if you think your emails are being read by law enforcement—you might be right.

-Matt Bewig

To Learn More:

FBI Documents Suggest Feds Read Emails Without a Warrant (by Nathan Freed Wessler, ACLU)

FBI Wants More Authority to Spy Live on Gmail, Skype, Dropbox and Cloud (by Matt Bewig, AllGov)