Posted on 02/03/2018 6:25:05 AM PST by markomalley
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."
The Justice Department's disinclination to seek warrants for private files stored on the servers of companies like Apple, Google, and Microsoft continued even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. A previously unreleased version of an FBI manual (PDF), last updated two-and-a-half years after the appellate ruling, says field agents "may subpoena" e-mail records from companies "without running afoul of" the Fourth Amendment.
The department did not respond to queries from CNET Tuesday. The FBI said in a statement that:
In all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines. Our field offices work closely with U.S. Attorney's Office to adhere to the legal requirements of their particular districts as set forth in case law or court decisions/precedent.
Not all U.S. attorneys have attempted to obtain Americans' stored e-mail correspondence without a warrant. The ACLU persuaded a judge to ask whether warrantless e-mail access has taken place in six of the 93 U.S. Attorneys' offices -- including the northern California office that's prosecuted an outsize share of Internet cases. The answer, according to assistant U.S. attorney Christopher Hardwood, was "no."
Still, the position taken by other officials -- including the authors of the FBI's official surveillance manual -- puts the department at odds with a growing sentiment among legislators who insist that Americans' private files should be protected from warrantless search and seizure. They say the same Fourth Amendment privacy standards that require police to obtain search warrants before examining hard drives in someone's living room, or a physical letter stored in a filing cabinet, should apply.
After the IRS's warrantless e-mail access policy came to light last month, a dozen Republican and Democratic senators rebuked the agency. Their letter (PDF) opposing warrantless searches by the IRS and signed by senators including Mark Udall (D-Colo.), Mike Lee (R-Utah), Rand Paul (R-Ky.), and Ron Wyden (D-Ore.) said: "We believe these actions are a clear violation of the Fourth Amendment's prohibition against unreasonable searches and seizures."
Steven Miller, the IRS' acting commissioner, said during a Senate hearing that the policy would be changed for e-mail. But he left open the possibility that non-email data -- Google Drive and Dropbox files, private Facebook and Twitter messages, and so on -- could be accessed without a warrant.
Albert Gidari, a partner at the Perkins Coie law firm who represents technology companies, said since the Sixth Circuit Court of Appeals' 2010 ruling in U.S. v. Warshak, the Justice Department has generally sought court warrants for the content of e-mail messages, but is far less inclined to take that step for non-email files.
...[From 2013] DOJ: We don’t need warrants for e-mail, Facebook chats...
More succinctly stated,
“We don’t need no stinkin’ warrants.”
Trump should take the exact language and re-issue it as if it was a new policy. Let liberal heads explode for a couple of weeks and then clarify that this is just continuing the policy established 5 years ago by the previous administration. Let them explain that!
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
James Clapper perjured himself before Congress about the NSA doing the same.
But he remains unpunished, stinking up talk shows with his execrable presence.
Comey perjured himself ...
Clinton ...
And that’s just a few of the C’s.
Factually, they don’t need warrants in may occasions. If the individual in question, places information of evidence to a crime on public consumption areas. Facebook, Twitter, and any of the thousands of computer boards, are open for discretion of any organization attached to law enforcement. Personal files, emails, and any one on one connection involving the web is not. In those areas there could be stored medical of professional information that was not exposed to the general public and is within the scope of a need for a warrant to retrieve. That’s not quite law in place because the web isn’t totally defined yet. But is my opinion it should be like everything else that is defined as private.
rwood
Per Maxine, everyone has been under total surveillance since BO first term of office. That would be the extensive database she references as an extremely powerful tool set up by, and for, Democrats.
Maxine Waters—”The President has put in place an organization with the kind of database that no one has ever seen before in life. That’s going to be very, very powerful. That database will have information about everything on every individual on ways that it’s never been done before and whoever runs for President on the Democratic ticket has to deal with that. They’re going to go down with that database and the concerns of those people because they can’t get around it. And he’s [President Obama] been very smart. It’s very powerful what he’s leaving in place.”
I remember reading that somewhere else in the past, but it sounds too coherent for Mad Max.
That’s strong brew and hubris squared to admit publicly. Can you give a cite?
As I mentioned the other day here, Obama had the full resources of our intelligence gathering/federal LEO resources to misuse and was unable to find a real tail to pin on Donald Trump or you can be sure Hilldawg would have used it.
Except that he likes women and is a billionaire who doesn’t 1040 EZ.
Verifying it might justify (clearing throat) turning over to a hard charger like Rep. Nunes for a FISA warrant directed at Obama’s DC `home’ which is quite possibly a front for a hive of scum and villainy, btw oddly being occupied (and operated?) by Val Jar-Jar Binks.
We’ve go the ball now. Time to go on offense.
Always been that way.
SMART CRIMINALS DON’T LET OTHERS HAVE CUSTODY OF EVIDENCE.
A simple solution would be for these businesses to charge enough to pay for challenging the subpoenas.
But that would cost them some profit.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.