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Article posted Apr 18 2010, 12:13 AM Category: Big Brother/Orwellian Source: Glenn Greenwald Print

The Obama DOJ's warrantless demands for e-mails

Glenn Greenwald

A very significant case involving core privacy protections is now being litigated, where the Obama Justice Department is seeking to obtain from Yahoo "all emails" sent and received by multiple Yahoo email accounts, despite the fact that DOJ has never sought, let alone obtained, a search warrant, and despite there being no notice of any kind to the email account holders:
In a brief filed Tuesday afternoon, the coalition says a search warrant signed by a judge is necessary before the FBI or other police agencies can read the contents of Yahoo Mail messages -- a position that puts those companies directly at odds with the Obama administration.
As part of a case conducted largely under seal and thus hidden from public view, the DOJ demanded these emails from Yahoo without any effort to demonstrate probable cause to believe the email user was involved in the commission of any crime, but instead merely based on the vague claim that there is "reasonable grounds to believe" the emails "are relevant and material to an ongoing criminal investigation."  If the DOJ position were accepted, Americans would have substantially less privacy protections in their email communications.

Federal law is crystal clear that a search warrant is required for the Government to obtain any emails that have been stored less than 180 days -- one that requires a showing of probable cause and that the documents sought to be described with particularlity.  In contrast to the nation's largest telecoms' eager cooperation with Bush's illegal surveillance programs, Yahoo -- to its credit -- refused to turn over any such emails to the Government without a search warrant.  As a result, the DOJ is now seeking a federal court Order compelling the company to comply with its demands, and a coalition of privacy groups and technology companies -- led by EFF and including Google -- have now filed a brief supporting Yahoo's position.  Both Yahoo and that coalition insist that federal law as well as the Fourth Amendment's search and seizure protection bar the Obama DOJ from acquiring these emails without a search warrant.

The law in question -- the Stored Communications Act, 18 U.S.C. sec. 2703 -- could not be clearer:
A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant.

The DOJ's blatantly twisted argument is that an email should be considered to be "in electronic storage" only for as long as it is unopened by the recipient; once it is opened, it is no longer "in electronic storage," and no warrant is required for the Government to obtain and read it.  Based on this rationale, the DOJ argues in its Brief that "a previously opened subscriber email is not 'in electronic storage'."  In other words, claims the DOJ, the search warrant requirement protects your emails only to the extent you never read them, but as soon as you read them, the Government no longer needs a search warrant to obtain and read them; instead, it merely needs to claim to a court that the emails are somehow "relevant" to a criminal investigation, and then they must be turned over without any notice to you. 

The DOJ insists upon this power notwithstanding a 2003 decision from the 9th Circuit Court of Appeals which explicitly rejected the claim that emails once read or downloaded are no longer "in electronic storage" under the Act.  Worse, a separate provision of the law -- 18 U.S.C. sec. 2510(17) -- explicitly defines "electronic storage" to include "any storage of such communication by an electronic communication service for purposes of backup protection of such communication":  exactly what one does when one reads an email and leaves it on the server.  The Obama DOJ's position is as radical as it is invasive; as Yahoo explained, it "is an attempt to reverse seven years of established precedent requiring law enforcement to follow carefully proscribed rules when seeking to obtain email content from providers like Yahoo."

At least as important, Yahoo and the coalition of privacy groups and technology firms are arguing for the application of the seminal 1967 Fourth Amendment case of Katz v. U.S. to email communications.  In Katz, the Supreme Court held that the Fourth Amendment protects against government eavesdropping on telephone calls even though such calls are not technically "houses, papers [or] effects"; even though eavesdropping does not constitute a physical search of the individual's property; and even though the telephone lines themselves are the property of the telephone company and not the individual.  That is because, explained the Katz Court, "the Fourth Amendment protects people, not places."  Moreover, telephone calls had become such a common means of private communications by 1967 that there was a reasonable expectation of privacy as to their contents; thus, "to read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication."

That such reasoning extends at least as much to email communications is self-evident, as is the danger of allowing Government acquisition of emails without a search warrant.  According to a 2003 Pew survey, "102 million Americans were email users in December 2002" and "more than nine in ten online Americans have sent or read email."  Those numbers were from 7 years ago and are obviously much higher now.  By itself, according to its Brief, Yahoo is used by 30 million people to send and receive email.

To allow the Government to access without search warrants the contents of one's private email communications -- as opposed to, say, merely information showing from whom one received or to whom one sent email -- is as central a violation of the Fourth Amendment's guarantee as can be imagined.  Of course, the FISA Amendments Act of 2008 -- which passed with Obama's support and was designed to legalize much of the Bush NSA surveillance program -- already legalized warrantless surveillance of most emails sent internationally without any real court oversight, but the Obama DOJ's position here would result in a far lower protections being applied to purely domestic emails (albeit with some minimal court involvement). 

The Fourth Amendment threats are obvious.  As the Katz Court said:  "The Government's activities in electronically listening to and recording the Petitioner's words violated the privacy upon which he justifiably relied."  And numerous courts, including the Sixth Circuit Court of Appeals in a 2007 decision, have explicitly invoked this reasoning to extend Katz's Fourth Amendment protections from telephone calls to email communications:  
It goes without saying that like the telephone earlier in our history, email is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations in the past.
I don't want to oversimplify the Fourth Amendment questions raised by this case.  There are exceptions to the Constitutional warrant requirement which the DOJ likely will argue applies here [such as the claim that an individual has no "reasonable expectation of privacy" when communications are turned over to a third party, as emails technically are when they're in the possession of service providers such as Yahoo (though no more so than a letter is "turned over" to the U.S. Postal Service)].  Whatever else is true, there is simply no viable way to distinguish the telephone conversations which the Katz court protected under the Fourth Amendment and the emails which most Americans now use on a daily basis for their most private communications.

If nothing else, consider the implications of allowing the U.S. Government to obtain and read emails simply by a vague showing of "relevance" to a criminal investigation, all without (a) any demonstration of probable cause, (b) a warrant from a court, (c) any notice provided to you that they're doing so, and (d) any Fourth Amendment protections.  As the brief filed by EFF, Google and others puts it, granting the Government such authority would have "extremely significant implications for the privacy of Americans' communications."  Yet that is exactly the power the Obama DOJ is claiming it possesses.

UPDATE:  I want to be clear about one point based on some of the discussion in the comment section:  the Obama administration did not invent the statutory argument that an opened emailed is no longer a "stored communication" under the Act.  That's an argument that has been advanced over the years by various parties in different contexts (though it was explicitly rejected by the 9th Circuit in the case I cited).  But to use that claim to try to obtain emails from Yahoo and similar providers without a search warrant is most certainly a departure from the protocol which has governed how emails are obtained by the Government, which is why Yahoo, Google, EFF and others reacted so strongly.  And the notion that emails are not subject to Fourth Amendment protections, whether new or not, is one of the most privacy-destroying claims that has arisen in the past several years.

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