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What the Government Says When It Says Nothing

Bennett Stein,
ACLU Speech, Privacy, and Technology Project
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May 17, 2013

On May 8, the ACLU released a slew of government documents obtained from the FBI, U.S. Attorneys’ offices around the country, and the Justice Department’s Criminal Division concerning the government’s access to the contents of private electronic communications. The media has seized upon one of those documents, an undated memo titled, “Guidance for the Minimization of Text Messages over Dual-Function Cellular Telephones.” This memo may show that the Criminal Division is doing nothing at all to avoid reading our text messages; it may show great procedures in place to safeguard the privacy our text messages; or, likely, it may have nothing to do with either of those predictions. The public does not know because the Justice Department put a large black box over every word following the header of the 15-page memo.

While this lack of transparency is stark indeed, at least we know that the document exists. Although the media loved the visual of the full redacted memo, the bigger story is that the Criminal Division withheld a whopping 7,079 pages of records in full—that is, they have effectively drawn that large black box over 7,079 entire pages!

Last year, the ACLU sent a Freedom of Information Act (FOIA) request to these agencies seeking records regarding whether the government gets a warrant before reading people’s email, text messages and other private electronic communications. The documents we did receive (and could read) show that the FBI believes it can read many emails and other electronic communications without a warrant and that different U.S. Attorneys’ offices around the country seem to be applying conflicting standards to access communications content (you can see all of the documents here). Further information about the agencies’ specific guidelines and practices regarding how and when they access the content of our electronic communications remain a mystery, hidden behind black boxes and withheld documents.

We had sent the same FOIA request to the IRS, and the documents we obtained showed that the IRS, too, has long taken the position that its criminal investigative agents can read emails without a warrant. However, in response to our release of those documents last month and the resulting media coverage and congressional pressure, the IRS updated its policy to state that a warrant is required for access to all emails, regardless of their age. Other agencies should follow suit.

Government openness allows the public to advocate for necessary change, as we saw in the response to the IRS documents last month. The Obama administration came into office pledging transparency, but we have found time and again that the administration has withheld far too much information from the public. The ACLU should not have to go to court to compel the government to tell the public how it operates, especially when something as important as the privacy of our sensitive electronic communications is at stake. In the case of the FBI and Justice Department, the new documents clearly show that Congress needs to reform the outdated Electronic Communications Privacy Act (ECPA) to make clear that a warrant is required for access to all electronic communications. We are not the only ones calling for ECPA reform – this week US Attorney General Eric Holder stated during a House Judiciary Committee hearing that the Justice Department would support reform legislation requiring a warrant for law enforcement access to electronic communications. It now falls to Congress to eliminate the loopholes in ECPA and protect our digital privacy.

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