According to new documents obtained by the American Civil Liberties Union, government officials may not always obtain warrants when they snoop through our emails, Facebook messages, and other electronic communications — and the FBI apparently doesn’t even believe it’s legally required to do so.
The documents, which were obtained through a Freedom of Information Act request and posted on the ACLU website, suggest that the U.S. Department of Justice is flouting a 2010 federal appeals court ruling that declared warrantless access to email a violation of the Fourth Amendment.
That ruling, a criminal appeal of U.S. v. Warshak, stated that the government must obtain a warrant before it can secretly seize and search emails stored by email service providers. As the Electronic Frontier Foundation noted at the time, “the court found that email users have the same reasonable expectation of privacy in their stored email as they do in their phone calls and postal mail.”
However, an FBI “Operations Guide” — made public for the first time by the ACLU — tells a more nuanced story. Revised in June of last year, the guide makes exemptions for email stored by a service provider for more than 180 days. That’s basically any message sitting in your Gmail or Facebook folder for longer than six months. Most email messages are stored on cloud servers, and with virtually unlimited storage space, many email users see no need to delete old messages.