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article imageOp-Ed: FBI believe they can search e-mails, and chats without warrants

By Ken Hanly     May 10, 2013 in Technology
Washington - The American Civil Liberties Union obtained government documents that show both the US Department of Justice and the FBI take the position that they do not need a search warrant when searching Americans' e-mails, Twitter messages, or Facebook chats.
Some government departments, however, hold that they require warrants for such reviews including the Internal Revenue Service after renouncing their earlier policy that claimed a right to do exactly what the FBI and Justice Department are doing.
A US attorney for Manhattan circulated instructions claiming that only a subpoena, signed by a prosecutor not a judge, was sufficient to obtain almost all records from an Internet Service Provider. Nathan Wessler, an ACLU staff attorney said:"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. Courts and Congress need to step in."
The Justice Department practice of seeking information on private files on servers of corporations such as Apple and Google, without warrants, continues even in the face of a decision of a federal appeals court. In 2010 the Sixth Circuit Court of Appeals' ruled in U.S. v. Warshak ruled, that this warrantless access to e-mail violates the Fourth Amendment of the US constitution. The amendment protects Americans against unreasonable searches and seizures. It also requires any warrant to be judicially sanctioned and supported by probable cause. The Justice Department and the FBI do not want to be hampered in the exercise of their duties by such frivolities.Apparently the Justice Department is immune from the law.
A new version of an FBI guide book claims that field agents can subpoena e-mail records from companies without running afoul of the fourth amendment. Never mind that an appeals court ruled the exact opposite. When CNET contacted the FBI, they did not respond to questions about the issue except to issue a statement that claims the FBI obtains evidence in accordance with the laws and the Constitution of the US, and consistent with Attorney General guidelines.
Sen. Mark Udall and a handful of other privacy-focused politicians persuaded the IRS to promise to cease warrantless searches of Americans' private correspondence just last month. Udall is also taking aim at the Justice Department. Udal maintained in a statement to CJNET:"I am extremely concerned that the Justice Department and FBI are justifying warrantless searches of Americans' electronic communications based on a loophole in an outdated law that the U.S. Court of Appeals for the 6th Circuit ruled was unconstitutional."
Corporations such as Google, Microsoft, Yahoo, and Facebook since the Warshak decision insist that all searches require warrants. Corporate America, in this case is much more protective of privacy than the government's Justice Department. Amazon, Apple, AT&T, eBay Google, Microsoft, among others have demanded that the government make it clear that warrants are needed to access private communications. While there are signs that the administration is giving in to demands for warrants to some extent, on other fronts the Obama administration is attacking privacy even more.
New York Times report that the Obama administration may embrace an FBI proposal for a law that will mandate that tech companies have built-in backdoors that would allow for surveillance. Aside from fourth amendment issues, a law of this type could have other negative consequences. Gregory Nojeim of the Center for Democracy and Technology says: “I think the F.B.I.’s proposal would render Internet communications less secure and more vulnerable to hackers and identity thieves. It would also mean that innovators who want to avoid new and expensive mandates will take their innovations abroad and develop them there, where there aren’t the same mandates.”
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com
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