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Does the Government Think It Can Read Our Mail Without a Warrant Just Because It’s Electronic?

Sarah Roberts,
Speech, Privacy and Technology Project
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June 14, 2012

Today the ACLU filed a lawsuit under the Freedom of Information Act to force the government to disclose information about the circumstances in which it accesses the contents of Americans’ private electronic communications without obtaining a warrant based upon probable cause. Such communications can include email, text messaging, and private conversations on social networks. While there is reason to believe this practice is widespread, there is much we don’t know about this government eavesdropping: when it happens, how often it’s done, who they’re watching, how long they monitor these communications, and what policies they have established regarding this monitoring. Through the lawsuit filed today, we hope to find out much more.

Electronic communication has virtually eclipsed postal mail and other physical methods as our primary means of communication. However, the law hasn’t caught up to this shift in how Americans communicate. While we can expect rigorous Fourth Amendment protection when it comes to our mail and landline phone conversations, that protection is lacking when we communicate using electronic methods. This gap presents an opportunity for the government to go fishing through the virtual equivalent of communications that would be off-limits were they on paper. If you think that distinction makes no sense, we agree.

Recent court cases and media reports have made it clear that federal officials are accessing the contents of at least some types of private electronic communications without a warrant. For example, in a case that came before the Sixth Circuit U.S. Appeals Court in 2010, United States v. Warshak, several people were accused of fraud for selling an herbal supplement purported to enhance male sexual performance. In the course of the investigation leading up to the case, the government obtained over 27,000 private emails from one defendant’s personal email account—invading the privacy not just of the accused but of everyone who emailed him—all without a warrant. In that case, the court properly held that warrantless searches of the contents of emails violate the Constitution.

In the wake of the Warshak case, it is unclear whether the government continues to access email without warrants in routine law enforcement investigations. Moreover, while some instances involving email surveillance, like the Warshak case, have been reported in the media, we know even less about how the government accesses other forms of communication, like text messages and private messages on Facebook.

There is absolutely no justification for secrecy when it comes to how the government is applying the law and the Constitution. The rules concerning government access to private communications touch on some of our most fundamental rights and must be openly and democratically decided. It’s hard to understand how to improve the law when we don’t even know how it’s currently being used.

To learn more about what’s happening, we filed FOIA requests with the Department of Justice and the IRS, two agencies we believe are conducting this type of warrantless surveillance. Although we filed the request back in February, we have yet to receive a single document. The goal of the lawsuit is to force the government to comply with their obligation to give us the information we requested—information that, under FOIA, the government is legally obligated to disclose.

We are also pursuing litigation in this related FOIA lawsuit on government use of surveillance powers.

Email and other forms of private electronic communications contain some of our most personal and sensitive information, from financial and health documents to messages from long-lost high school sweethearts. Most of us expect those messages to remain private. But at a bare minimum, we deserve to know when and how the government is listening in.

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