American Civil Liberties Union

Today the ACLU filed a batch of Freedom of Information Act (FOIA) requests to learn more about the government's practice of reading people's email, text messages and other private electronic communications without a warrant.

It has been clear since the 1870s that the government needs a warrant to read snail mail, and there is no good reason for email to be treated differently. Unfortunately, the government continues to take advantage of an outdated law to read Americans' private electronic communications without a warrant. Under the law, the government does need a warrant to access the content of electronic communications that are 180 days old or less, but doesn't need one for older emails. In an era when everyone stores their email forever, this rule makes no sense and puts a great deal of personal information at risk.

Last week the Justice Department squandered an opportunity to reassure Americans that as technology advances our civil liberties will not be left behind. The Justice Department was called before Congress to say whether it should be permitted to read people's email, text messages and other electronic communications without a probable cause warrant — that is, without a judicial determination that it has a good reason to believe a search will turn up evidence of a crime. The clear answer to this question should have been "no." After all, a warrant has been required for postal mail since at least the 1870s and for telephone conversations since the 1960s. Why shouldn't our email receive the same protection?

Today the U.S. Court of Appeals for the Ninth Circuit issued a disappointing but fortunately narrow decision in a case involving warrantless tracking of a vehicle with a GPS device. The three-judge panel refused to exclude GPS tracking evidence under what’s known as the “good faith” exception, ruling that when the tracking took place, law enforcement agents reasonably relied on binding circuit court precedent in concluding that no warrant was necessary. The tracking happened before the Supreme Court issued its decision in United States v. Jones that GPS device tracking triggers Fourth Amendment protections.

Should law enforcement agents have to obtain a warrant based on probable cause to attach a GPS tracker to a vehicle and track its movements? Several months ago we asked the Third Circuit Court of Appeals to consider our argument that they should (you can read our amicus brief here). Today, we will be in court arguing that point in the case of Harry, Mark, and Michael Katzin.