The Department of Justice under the Obama administration is now saying that the government has the right to seize and scrutinize Americans’ recent e-mails, without a search warrant, without any showing of probable cause, and without notice to the e-mail account holders.
Yahoo, and a coalition of other companies and organizations, are standing up against this blatant violation of privacy rights.
Yahoo and federal prosecutors in Colorado are embroiled in a privacy battle that’s testing whether the Constitution’s warrant requirements apply to Americans’ e-mail.
The legal dust-up, unsealed late Tuesday, concerns a 1986 law that already allows the government to obtain a suspect’s e-mail from an ISP or webmail provider without a probable-cause warrant, once it’s been stored for 180 days or more. The government now contends it can get e-mail under 180-days old if that e-mail has been read by the owner, and the Constitution’s Fourth Amendment protections don’t apply.
Yahoo is challenging the government’s position and defying a court order to turn over some customer e-mail to the feds. Google, the Electronic Frontier Foundation, the Center for Democracy & Technology and other groups late Tuesday told the federal judge presiding over the case that accessing e-mail under 180 days old requires a valid warrant under the Fourth Amendment, regardless of whether it has been read.
“The government says the Fourth Amendment does not protect these e-mails,” Kevin Bankston, an EFF lawyer, said in a telephone interview Wednesday. “What we’re talking about is archives of our personal correspondence that they would need a warrant to get from your computer but not from the server.”
If the courts adopt the government’s position, the vast majority of Americans’ e-mail would be accessible to the government without probable cause, whenever law enforcement believes the messages would be relevant to a criminal investigation, even if the e-mail’s owner is not suspected of wrongdoing.
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.
To allow the Government to access without search warrants the contents of one’s private email communications — as opposed to, say, merely information about 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 burden being applied to purely domestic emails. The Fourth Amendment threats are obvious.
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.