If we’ve told you once, we’ve told you a thousand times—the feds can (and do) easily access your e-mail. In fact, sending materials through the United States Postal Service is legally more secure than e-mail.
On Wednesday, as the result of a Freedom of Information Act request, the American Civil Liberties Union has published the first public copy of the 2012 edition of the FBI’s Domestic Investigations and Operations Guide. And this document clearly draws that distinction. The new disclosure shows that the FBI believes it does have the authority to open your e-mail essentially whenever it wants:
Here’s what all that means: under the much-maligned (but frustratingly still-current) 1986-era Electronic Communications Privacy Act (ECPA), law enforcement must get a warrant to access e-mail before it has been opened by the recipient. However, there are no such provisions once the e-mail has been opened or if it has been sitting in an inbox, unopened, for 180 days. In March 2013, the Department of Justice acknowledged in a Congressional hearing that this distinction no longer makes sense and the DOJ would support revisions to ECPA.
If that weren’t complicated enough, one United States circuit court of appeals decided that federal authorities do need a warrant before accessing e-mail. The case, known as United States v. Warshak, has created a split as other circuits haven’t yet taken up the issue, including the United States Supreme Court. (Google has since taken the public stance that it will follow the Warshakstandard.)
The ACLU has been at the forefront of trying to figure out exactly where various federal agencies stand in observing or not observing the Warshak standard. Just last month, the advocacy group unveiled the fact that the Internal Revenue Service believes it has the authority to investigate tax cheats under ECPA, but soon after the interim director said the agency has never done so.