Jonathan Sanger / msnbc.com
Catherine Crump, a staff attorney for the ACLU
By Bob Sullivan
Does
the U.S. government read your email? It's a simple question, but
apparently there's no simple answer. And the Justice Department and the
Internal Revenue Service are reluctant to say anything on the topic.
In
March, the American Civil Liberties Union caused a nationwide stir when
the advocacy group released the results of its year-long investigation
into law enforcement use of cellphone tracking data. After issuing
hundreds of Freedom of Information Act requests, the ACLU learned that
many local police departments around the country routinely pay mobile
phone network operators a small fee to get detailed records of historic
cell phone location information. The data tell cops not just where a
suspect might have been at a given moment, but also create the
possibility of retracing someone's whereabouts for months. In most
cases, law enforcement obtains the data without applying for a search
warrant; generally, subpoenas are issued instead, which require law
enforcement to meet a lower legal standard.
ACLU lawyer Catherine Crump, who ran the cellphone location data
investigation, is at it again. This time, she has filed similar Freedom
of Information Act requests with several federal agencies, asking about
their policies and legal processes for reading Internet users' emails.
"It's
high time we know what's going on," Crump told msnbc.com. "It's been
clear since the 1870s that the government needs a warrant to read postal
mail. There's no good reason email should be treated differently."
There are hints that it is being treated differently, however. In a
landmark 2010 case, United States v. Warshak, government investigators
acknowledged that they read 27,000 emails without obtaining a search
warrant, violating both the suspect's privacy and the privacy of
everyone who communicated with the suspect, according to Crump.
Evidence obtained during that email search was thrown out on appeal by the 6
th U.S. Circuit Court of Appeals, but that ruling applies only to four U.S. states.
The case opened a window into what Crump fears is a widespread practice.
In
the aftermath of the Warshak case, the Internal Revenue Service told
its investigators that they should not try to obtain emails without a
court order, but in doing so it hinted that other warrantless email
searches had been conducted in the past.
For now, hints are all we
have. Crump's Freedom of Information Act requests -- filed in February
with the FBI, the IRS, the Justice Department's Office of Legal Counsel
and other agencies -- were largely ignored, she says. So on June 14, she
filed a lawsuit in the Southern District of New York in an attempt to
force the agencies to comply.
"Four months have passed and I haven't gotten a single document," she said. "The American people have a right to know."
The
federal agencies have until July 19 to reply to the lawsuit. The FBI is
not included in the lawsuit because it replied recently denying Crump's
request, saying it was too broad. The ACLU is appealing that
determination through a different legal procedure.
Justice
Department spokesman Charles Miller directed all questions about the
matter to the agency's New York office. A spokeswoman for that office,
Ellen Davis, said she couldn't discuss it.
"We do not comment on ongoing litigation," Davis said in an email.
Julianne Breitbeil, a spokeswoman for the IRS, said federal privacy laws prevent the agency from discussing the lawsuit.
The
Justice Department and the Obama administration had a chance to settle
the issue in April 2011, during a Senate hearing on the Electronic
Communications Privacy Act. Instead, officials with both the Commerce
and Justice departments failed to provide any clarity. Instead, a
Justice Department official argued against extending Fourth Amendment
protections -- specifically strict warrant requirements -- to email,
saying that doing so would hinder investigations.
"Congress should
consider carefully the adverse impact on criminal as well as national
security investigations if a probable-cause warrant were the only means
to obtain such stored communications," James Baker, associate deputy
attorney general,
testified at the hearing.
Crump interpreted the testimony as indicating that warrantless email searches by federal agents are routine.
"It
was disappointing when the Obama administration refused to commit one
way or the other to obtaining a warrant," she said. "It leads me to
suspect the federal government isn't getting warrants."
A
critical element of the email issue is a debate about whether the Fourth
Amendment requires the government to get warrant based on probable
cause in order to read a suspect’s email. To get a warrant, the
government must appear before a judge, and convincingly argue that
inspection a suspect’s email will probably turn up evidence of a crime.
"The
warrant and probable cause requirement safeguard Americans' privacy in
two important ways. Having to go to a judge means there is someone
involved whose job it is to look out for the target's rights. And having
to demonstrate probable cause will reduce the chances that innocent
people have their communications read," Crump said.
The
distinction is also important as the U.S. government plunges headlong
into new high-tech surveillance technologies, such as its massive new
million-square-foot "Utah Data Center," under construction in rural Utah
for the National Security Agency. The facility is designed to help
protect cyberspace, NSA official have said. But
Wired Magazine published a cover story earlier this year
arguing that the facility will be capable of monitoring every email and
text message sent around the world -- including messages to and from
U.S. citizens. It is scheduled to come online in 2013.
The NSA
denies that the facility will be used to spy on Americans, but it's
hardly far-fetched to surmise it will have such capabilities.
Explosion of such technological capabilities is why clarifying digital Fourth Amendment rights is so critical, Crump said.
"No
data is more personal than email correspondence," she said. "Email is
deeply personal and private. It is an unfiltered view of our thoughts
and a catalog of our relationships stretching back for years. Government
agents should not be allowed to troll through all of our most private
correspondence without proving to a judge that they have probable cause
to believe that a search will turn up evidence of a crime."
