American Civil Liberties Union

New documents from the FBI and U.S. Attorneys’ offices paint a troubling picture of the government’s email surveillance practices. Not only does the FBI claim it can read emails and other electronic communications without a warrant—even after a federal appeals court ruled that doing so violates the Fourth Amendment—but the documents strongly suggest that different U.S. Attorneys’ offices around the country are applying conflicting standards to access communications content (you can see the documents here).

Last month, in response to a Freedom of Information Act request, the ACLU received IRS documents indicating that the agency’s criminal investigative arm doesn’t always get a warrant to read Americans’ emails. Today we are releasing these additional documents from other federal law enforcement agencies, reinforcing the urgent need for Congress to protect our privacy by updating the laws that cover electronic communications.

The FBI and Electronic Communications: Where’s the Warrant?

The documents we received from the FBI don’t flat out tell us whether FBI agents always get warrants, but they strongly suggest that they don’t.

In 2010, the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages to law enforcement. But that decision only applies in the four states covered by the Sixth Circuit, so we filed our FOIA request to find out whether the FBI

Everyone knows the IRS is our nation’s tax collector, but it is also a law enforcement organization tasked with investigating criminal violations of the tax laws. New documents released to the ACLU under the Freedom of Information Act reveal that the IRS Criminal Tax Division has long taken the position that the IRS can read your emails without a warrant—a practice that one appeals court has said violates the Fourth Amendment (and we think most Americans would agree).

In an effort to rein in overreaching law enforcement practices, Rep. Jason Chaffetz (R-Utah) and Sen. Ron Wyden (D-Ore.) yesterday re-introduced the GPS Act, which would require a warrant for location tracking and create a critical check on the growing use of these invasive searches.

The ACLU released documents last week indicating that the criminal investigative arm of the IRS doesn’t think it always needs a warrant to read people’s email when investigating them for tax crimes. The revelation garnered widespread media attention (see examples here, here, and here). We called on the IRS to clarify its policy but, unfortunately, the agency issued only a brief, confusing statement that failed to explain its actual policy and practices. As we said last week, because our emails, text messages, and other electronic communications contain some of our most sensitive and private information, it is crucial that federal law enforcement agencies obtain a warrant from a neutral judge before accessing them.