DOJ docs reveal Facebook and email digging without a warrant

May 8, 2013
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The US Department of Justice and FBI can read your email, Facebook and Twitter messages, and other electronic content without needing a warrant first, government documentation reveals, in what's being seen as another slap at due process and privacy. Internal guidelines from US Attorney offices in multiple locations and acquired by the American Civil Liberties Union apparently suggest that investigators need not go through regular legal channels to arrange search warrants to dig in American's electronic communications. Instead, CNET reports, agencies are seemingly taking the easiest route they can to access email and messaging records, bypassing approval from a judge.

In one case, in Houston, the US Attorney's office apparently acquired "contents of stored communications" from an ISP, identity unspecified, without a warrant. The US Attorney's office in Manhattan issued guidelines to staff that it could achieve the same results with a subpoena rather than a full warrant.

It's not the first time this year that investigative methods followed by US governments have come in for criticism. Back in March, a California court criticized the FBI for violating First Amendment rights by using so-called "National Security Letters"; by citing national security considerations, the FBI could bypass getting warrants in the traditional manner, and the subject of investigations would not be informed that their data had been shared.

Here, it's the Fourth Amendment which privacy advocates like the ACLU argue the DOJ and FBI are trampling over. Digital information held by cloud services like Gmail, Dropbox, Facebook, or Twitter should be just as protected as a hard-drive physically located in a suspect's home, they claim.

One confusing factor is that in many cases email and non-email digital content is treated differently. A 2010 ruling by the Sixth Circuit Court of Appeals, US v. Warshak, left many of the big names in webmail - Gmail and Outlook among them - insisting full warrants for access to emails they store. However, while the Justice Department appears content to comply with that, it has proved less concerned with following full warrant procedures with files such as those stored in Dropbox or Google Drive, or direct messages and IM chat on Twitter and Facebook.

"We really can't have this patchwork system anymore," ACLU staff attorney Nathan Wessler concludes, "where agencies get to decide on an ad hoc basis how privacy-protective they're going to be." However, moves to pin down the exact legal expectations of the DoJ and FBI have met with opposition, and other proposals to heavily fine companies like Google who do not comply with wiretap orders are also underway.


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