FBI says it doesn't need a warrant to snoop on private email, social network messages

An FBI guidance manual says the law enforcement agency is able to access U.S. residents' email, Facebook and Twitter messages, and private documents, without breaching the Fourth Amendment.
Written by Zack Whittaker, Contributor on

The U.S. Federal Bureau of Investigation is able read your emails, Facebook chats, Twitter messages and other private documents without the need for a search warrant, according to its own guidance.

The bureau insists this policy does not breach the Fourth Amendment to the U.S. Constitution, which protects citizens from "unreasonable searches and seizures." Others aren't so sure.

Government documents reviewed by CNET's Declan McCullagh show that prosecutors and investigators at the U.S. Department of Justice believe they do not need a court-ordered search warrant to access sensitive and private citizen data. Instead, a subpoena signed by a federal prosecutor can be enough to obtain nearly "all records from an ISP."

A search warrant signed by a judge can compel a company into handing over all of a user's data, while a subpoena often grants investigators access to "communications data," such as who a person was communicating with, when, on what day, and at which computer or location based on their IP address.

The FBI guidance, written and published internally after the 2010 ruling, said field agents are able to subpoena email records "without running afoul" of the Fourth Amendment.

The Justice Department's move to issue subpoenas internally rather than taking the matter to a court appears to go against a 2010 ruling that compelled federal authorities and police to obtain search warrants before accessing Internet users' email accounts.

On Saturday, The Guardian published a transcript by former FBI counterterrorism agent Tim Clemente, who stated: "[Federal authorities] certainly have ways in national security investigations to find out exactly what was said in that conversation," hinting that the FBI is able to access any phone call recordings or email.

It also comes only a few weeks after the FBI were denied a request to install spyware on a suspects' computer in order to spy on them without their knowledge. The FBI was criticized by the judge for "[making] no attempt to explain" why alternatives would not be as effective.

But the judge also disclosed [PDF] that the federal government "sought and obtained" under the Electronic Communications Privacy Act (ECPA) an unnamed ISP to "turn over all records related to the counterfeit email account, including the contents of stored communications."

How companies like Apple, Google and Microsoft fight back against unwarranted searches is an entirely different matter. Both Google and Microsoft have "transparency reports," which disclose how many requests are made by government authorities around the world, including U.S. authorities. Some companies, such as Twitter, are known to actively fight back against subpoenas and search warrants.

Google also stated that it requires a search warrant for "email content" and other private data. Apple, meanwhile, has been criticized for failing to disclose government requests by the EFF in a recent report.

The FBI's guidance appears to be in conflict with what the Internal Revenue Service said last month. The tax agency said it would no longer access email data without a warrant as part of tax investigations. In an IRS handbook detailing the search warrant process stated that: "emails and other transmissions generally lose… their Fourth Amendment protection."

It's not unlike government departments to have "interpretations" or "guidance" for complicated acts of law. In January, the Electronic Frontier Foundation (EFF) was successful in having a secret interpretation of the controversial Foreign Intelligence Services Act (FISA) unmasked -- at least to some degree. 

Two politicians, Sen. Ron Wyden (D-OR) and Sen. Mark Udall (D-CO), first flagged the secret document in 2011. Though when it was released under a Freedom of Information (FOIA) request, it was all but entirely redacted. 

But CNET noted not all U.S. Attorneys have attempted to gain access to U.S. residents' email and social networking content without a warrant.

The underlying argument is that the authorities believe they have this power, the Fourth Amendment notwithstanding, amid growing sentiments in Congress to change the law, to give email the same protected rights as a physical unopened letter.

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