Privacy SOS

AG Holder, FBI and U.S. Attorneys’ offices can’t agree on a warrant requirement for email surveillance

Last week Attorney General Eric Holder told congress that the Justice Department will likely support efforts to update the 1986 Electronic Communications Privacy Act, to require the government to obtain warrants to read our emails. Holder doesn’t want the warrant requirement to apply to civil investigations, but agrees that “the more general notion of having a warrant to obtain the content of communications from a service provider” is the way to go. 

The Hill reports Holder

said that striking the right balance between privacy and the government's ability to access information is "one of the most important conversations I think we can have in the 21st century."

The ACLU loves having this conversation! We totally agree! But in order to have a useful conversation, we’ve got to know what facts we are working with. That’s why we are always meddling in the government’s affairs by requesting information about what powers it thinks it has, and how it uses them. 

My colleague Nathan Wessler did just that a little while ago, and learned that there is no uniformity among DOJ offices concerning the rules for email surveillance.

The documents released to the ACLU show that the FBI, Attorney General Holder, and various U.S. Attorneys' offices can’t seem to agree about a warrant requirement for email.

On the one hand, the FBI’s 2012 Domestic Investigations and Operations Guide (DIOG) — the manual which lays out rules for the bureau's US investigations — says that the government doesn’t have to get warrants for unopened emails, or those older than 180 days. That is so despite a 2010 Sixth Circuit Court ruling in Warshak that says the government needs to get a probable cause warrant before asking Google or Microsoft to pony up our private communications. 

Likewise, in an “unidentified document” the ACLU received from the Executive Office for U.S. Attorneys, paragraphs from the U.S. Attorney for the Southern District of New York state “that law enforcement can obtain “opened electronic communications or extremely old unopened email” without a warrant.” (Six months is extremely old? Who knew.)

On the other hand, a October 2012 document released by the U.S. Attorney for the Northern District of Illinois clearly states that warrants are required for access to electronic communications content, and even cites the Warshak case.

Confusing, right?

To recap: the boss at DOJ told congress that he agrees with a warrant requirement for emails (except in civil investigations), but the FBI’s investigations guidelines say warrants aren’t always required, and U.S. Attorneys' offices nationwide appear to have varying rules.

I say “appear to” because, mysteriously, the cover pages from the U.S. Attorneys' documents cited above are missing, and so we don’t know whether the documents represent official policy. 

If Attorney General Holder really wants to have a meaningful conversation about surveillance and privacy in the 21st century, as he says he does, he should order his employees to be more transparent and responsive to information requests. Leaving the cover pages on and doing more than disclosing pages upon pages of entirely redacted documents would be a good start.

Meanwhile, Wessler points out that at least one U.S. Attorneys' office was still getting emails without warrants as recently as March 2013. The 'conversation' Holder referenced is important and should continue, but we know enough right now to be certain that we need to reform the underlying statute. Take action now to tell the government: You need a warrant to read my emails.

Read the U.S. Attorneys' offices documents here.

© 2021 ACLU of Massachusetts.