During the debate in the House of Representatives over cyber-security, the White House issued veto threat over CISPA due to Internet privacy concerns. Despite that strong stance on a controversial piece of legislation, there have been a number of news stories recently showing various government agencies willingness to ignore constitutional protections to gain access to e-mail and other forms of electronic communication and files.
In fact, it’s the official policy of President Barack Obama’s Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) that agents do not need a warrant when they want to gain access to e-mail and Facebook accounts:
The U.S. Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.
Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they’re not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.
The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena — a piece of paper signed by a prosecutor, not a judge — is sufficient to obtain nearly “all records from an ISP.” And the U.S. attorney in Houston recently obtained the “contents of stored communications” from an unnamed Internet service provider without securing a warrant signed by a judge first.
“We really can’t have this patchwork system anymore, where agencies get to decide on an ad hoc basis how privacy-protective they’re going to be,” says Nathan Wessler, an ACLU staff attorney specializing in privacy topics who obtained the documents through open government laws. “Courts and Congress need to step in.”
What’s more the White House may back the FBI’s proposed overhaul of surveillance laws that would essentially codify further violations of the Fourth Amendment, which guarantees Americans’ privacy, into law.
There has been a some movement to protect Internent privacy. Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT) have offered legislation that would amend the Electronic Communication Privacy Act (ECPA) to require law enforcement agencies to obtain a warrant before accessing e-mails and other forms of electronic communication. That legislation recently passed the Senate Judiciary Committee. In the House, Reps. Tom Graves (R-GA) and Kevin Yoder (R-KS) have offered their own version of Leahy-Lee.
There is also a coalition of groups across the ideological spectrum that have teamed up to form Digital 4th, which is pushing Congress to update ECPA laws to protect Americans’ civil liberties against what is clearly government overreach.