May 13, 2013

Despite a federal appeals court ruling that government snooping on emails requires a search warrant, the FBI and other federal law enforcers regularly ignore this constitutional mandate, according to documents obtained by the American Civil Liberties Union under the Freedom of Information Act. At the same time that it acts as if it has the authority to violate the privacy of citizens’ emails, the FBI is seeking Congressional authorization for its unlawful activities.

It has been illegal for law enforcement to open sealed envelopes and packages in the U.S. mail since 1877, when the Supreme Court case of Ex Parte Jackson held that a warrant is required by the Fourth Amendment. It has also been illegal to snoop on ongoing electronic communications like phone calls without a warrant since the 1967 case of Katz v. U.S. Although emails have raised new issues that have yet to be entirely resolved, the Sixth Circuit Court of Appeals (which hears cases from Kentucky, Michigan, Ohio and Tennessee) ruled in Warshak v. U.S (2010) that opening emails requires a warrant based on probable cause.

According to the documents obtained by the ACLU, however, federal law enforcement, including the FBI, IRS and others, believes the warrant requirement does not apply to emails, and U.S. Attorneys’ offices around the country have issued inconsistent and even conflicting standards to the issue. The resulting confusion creates plenty of room for mischief.

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