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The FBI has warrantless access to emails

American Civil Liberties Union complains
Fri May 10 2013, 09:35

MEN IN SUITS at the US Federal Bureau of Investigation (FBI) have got into the habit of reading email communications without bothering to get warrants first.

That is the complaint made by the American Civil Liberties Union (ACLU), which today warned that a loophole in the Electronic Communications Privacy Act (ECPA) gives the FBI carte blanche under the counter access to people's emails.

The ACLU has been peeking through an FBI handbook and there it stumbled across the revelation that the FBI can look at emails as long as they are at least six months old. The handbook, which was published last year, offers this advice to men in suits in the field.

"In enacting the ECPA, Congress concluded that customers may not retain a 'reasonable expectation of privacy; in information sent to network providers. . . [I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the e-mail has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney," the handbook said.

"In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment."

The ACLU is predictably unhappy about this, and it said that there is already proof that the FBI is reading emails without a warrant. The ACLU wants any vagueness out of the way, and a commitment from those involved that the system will not be abused.

"These records show that federal policy around access to the contents of our electronic communications is in a state of chaos," it said in a blog post.

"The FBI, the Executive Office for US Attorneys, and DOJ Criminal Division should clarify whether they believe warrants are required across the board when accessing people's email... Congress also needs to reform ECPA to make clear that a warrant is required for access to all electronic communications."

"I am extremely concerned that the Justice Department and FBI are justifying warrantless searches of Americans' electronic communications based on a loophole in an outdated law that the U.S. Court of Appeals for the Sixth Circuit ruled was unconstitutional," added Mark Udall, US Senator from Colorado.

"These reports only harden my resolve that we must update the Electronic Communications Privacy Act to protect Americans' constitutional right to privacy. Americans' right to be free from 'unreasonable searches and seizures' applies regardless of whether it involves a letter stored in a desk or an email stored online."

Udall is pushing for an updated Electronic Communications Privacy Act (ECPA), and the promise that federal agencies will not violate Americans' constitutional rights. µ



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