The latest news in the ongoing saga of just how frigging snoopy our overlords in Washington, D.C., are won't surprise anybody who has been staying abreast of news of the nosy. After all, we already know the federal government is inducing communications companies to spy on customers by promising not to enforce privacy protections and by threatening to fine online companies that make it difficult for the feds to grab our data. So, it's little surprise that the legal eagles at the U.S. Department of Justice think that full Fourth Amendment protections just don't apply to online communications.
The U.S. Department of Justice and the FBI believe they don't need a search warrant to review Americans' e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.
Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they're not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.
The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena—a piece of paper signed by a prosecutor, not a judge—is sufficient to obtain nearly "all records from an ISP." And the U.S. attorney in Houston recently obtained the "contents of stored communications" from an unnamed Internet service provider without securing a warrant signed by a judge first.
The American Civil Liberties Union points out that the DOJ takes its position on warrant-free access to email "even after a federal appeals court ruled that doing so violates the Fourth Amendment."
In 2010, the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages to law enforcement. 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so we filed our FOIA request to find out whether the FBI and other agencies are taking advantage of a loophole in the outdated Electronic Communications Privacy Act (ECPA) that allows access to some electronic communications without a warrant. Distressingly, the FBI appears to think the Fourth Amendment's warrant requirement doesn't always apply.
Different U.S. Attorney's offices appear to be following different standards, the ACLU continues, even when they officially insist that they're following the Warshak standard.
Basically, the feds will scoop up every bit of information they can, subject to as few limitations as possible, until somebody makes them stop.
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