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The Federal Government May be Guilty of Warrantless Snooping On Private Emails

As reported by MSNBC, the American Civil Liberties Union has released the results of a year-long investigation into the warrantless use of cellphone tracking data by law enforcement.[1] Speculations that the Justice department and the Internal Revenue Service troll individual American citizens’ e-mail and cellphone records are rampant; but the departments are reluctant to put them down.

In its investigation, the ACLU found many law enforcement agencies nationwide pay the major cellphone carries a small fee to receive a copy of a user’s detailed historic cellphone location information.  What this means is that a local police department can pay a nominal fee to learn exactly where you travelled to, moment-by-moment, during a period of time without the consent of a judge.

Catherine Crump, the ACLU lawyer that ran the investigation, is now investigating federal agencies’ policies for reading private users’ emails.  As Crump told MSNBC, “It’s high time we know what’s going on.  It’s been clear since the 1870’s that the government needs a warrant to read postal mail.  There’s no good reason email should be treated differently.”  In the 2010 case, United States v. Warshak, government officials acknowledged the reading of 27,000 emails without a warrant.  The court held that the agents involved violated defendant Steven Warshak’s Fourth Amendment rights by illegally compelling his internet service provider to submit copies of personal emails to the government.  However, the Court ruled that the agents were acting in good faith of the Stored Communication Act.

Most of Crump’s current Freedom of Information Act requests have been ignored.  On June 14th, she filed suit with the Southern District of New York to force a reply.  “Four months have passed and I haven’t gotten a single document.  The American people have a right to know.”

In a Senate hearing on the Electronic Communications Privacy Act April 2011, officials from the Obama administration failed to clarify the confusion about search capabilities on electronic messaging or to expand Fourth Amendment protections, citing that doing so would hinder investigations.

James Baker, associate deputy attorney general, adds, “Congress should consider carefully the adverse impact on criminal as well as national security investigations if a probable-cause warrant were the only means to obtain such stored communications.”

The act in question, the 1986 Electronic Communications Privacy Act, and its subsection, the Stored Communications Act, allows for the warrantless search of data that is older than six months that is stored externally of a personal computer.  With most email providers being web-based (such as Gmail) and by definition external, and with the advent of cloud computing, this law is notably out-dated, as the 6th Circuit Court has determined.

However, this is not the first time the federal government has been accused of warrantless snooping.  In 2002, President Bush issued an executive order allowing the National Security Agency to track and record international telephone and internet conversations without the need of a warrant with the expressed intent to catch terrorists.[2] Under the Foreign Intelligence Surveillance Act, the President may authorize surveillance of international communications for a term no greater than one year, and federal law enforcement agencies can request warrants against suspected national security threats via the Foreign Intelligence Surveillance Court.

However, as reported in Wired.com, investigative reporter James Bamford suspects that the NSA is actively eavesdropping domestically against American citizens.[3] Under surveillance program “Stellar Wind”, the NSA will be able to monitor billions of pieces of communicative data via their massive “spy center” in Bluffdale, Utah.


[1] Is US Government Reading Email Without a Warrant?

[2] Bush Lets US Spy on Callers Without Courts

[3] NSA is Building the World’s Largest Spy Center

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