The Weakened State of E-Mail Privacy

May 20, 2013

EmailIn response to a Freedom of Information Act request filed by the American Civil Liberties Union, documents released by the Federal Bureau of Investigation and various U.S. Attorneys’ offices paint a confused picture regarding the current state of electronic mail privacy.  The documents indicate that the FBI takes the position that it can review electronic communications, including e-mail messages, without a warrant, and that different U.S. Attorneys’ offices use different standards with regard to accessing electronic communications.

In the case, U.S. v. Warshak, in 2010, the Court of Appeals for the Sixth Circuit determined that federal authorities must obtain a warrant before compelling disclosure of electronic communications.  Documents released by the FBI to the ACLU suggest, however, that the FBI does not always follow the standard established in the Warshak case.

The ACLU reports that the FBI’s Domestic Investigations and Operations Guide (DIOG) identifies investigatory practices and procedures applied by the Bureau.  According to the ACLU, prior to the Warshak decision, the DIOG indicated that warrants were required to access only electronic communications that are less than 180 days old and are unopened.  The reports that the FBI apparently did not modify that standard even after the Warshak decision clarified that warrants are required to access all electronic communications.  Apparently, the FBI continues to take the position that warrants are not required for access to all electronic communications, despite the Warshak ruling.

Documents released to the ACLU by several U.S. Attorneys’ offices, combined with follow-up communications between the ACLU and those offices, suggest that the different groups apply different standards regarding warrants for access to electronic communications.  Although the U.S. Attorneys’ offices contacted by the ACLU now indicate that they do not authorize access to electronic communications without a warrant, the ACLU reports that it has identified at least one recent instance in which warrantless access to e-mail seems to have been authorized.

The ACLU’s investigation suggests that, despite the federal court ruling in the Warshak case, the FBI is not yet following the court’s standard of requiring warrants for access to all electronic communications.  The results of the inquiry also seem to indicate that the U.S. Attorneys’ offices are applying confusing and sometimes inconsistent approaches to the issue of warrants for electronic communications.

This confused environment has reportedly encouraged some providers of e-mail and other electronic communications services to take a more aggressive posture when approached by federal authorities for access to communications.  Some of those service providers now reportedly routinely insist that warrants be provided prior to access.  This approach appears to be entirely appropriate and justified by the Warshak ruling.

The ACLU recommends that Congress and federal law enforcement authorities should take prompt, clear, and consistent action to ensure that warrants are required and obtained prior to review of all e-mail and other electronic communications.  Based on the apparent current state of affairs, the ACLU’s recommendation is both timely and necessary.