The FBI Can Trawl Through Your Email Archives Anytime it Wants

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Here’s a surveillance state factlet that I think I knew at one point, but have since forgotten:

Under the 1986 Electronic Communications Privacy Act, federal authorities need only a subpoena approved by a federal prosecutor — not a judge — to obtain electronic messages that are six months old or older. To get more recent communications, a warrant from a judge is required. This is a higher standard that requires proof of probable cause that a crime is being committed.

….The chairman of the Senate Judiciary Committee, Patrick Leahy, has proposed changing the law to require a warrant for all Internet communications regardless of their age. But law enforcement officials have resisted because they said it would undercut their ability to catch criminals.

As it happens, news reports suggest that the FBI did indeed get a warrant in order to trawl through the emails from Paula Broadwell and David Petraeus that are at the center of the current FBI/CIA scandal. But that shouldn’t change anything. The six-month rule simply has no reasonable basis. The FBI needs a warrant to look through my physical belongings regardless of how old they are, and that’s how it should be. Email shouldn’t be any different.

UPDATE: Julian Sanchez tweets some additional context: “Technically accurate but misleading: Subpoena for e-mail ALWAYS requires prior notice to user, opportunity to quash….For access without notice, judicial order always acquired—though not necessarily a probable-cause warrant.”

UPDATE 2: Never mind. Julian Sanchez tweets again to say prior notice isn’t required after all: “I was mistaken. The provision is confusingly framed, with “delayed notice” attatched to the “court order” subsection….But on a second look, 2705 allows delay for either orders or subpoenas. Embarrassing goof on my part; apologies….Though my understanding is that many providers will balk at turning over contents in response to a subpoena.”

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THE BIG PICTURE

You expect the big picture, and it's our job at Mother Jones to give it to you. And right now, so many of the troubles we face are the making not of a virus, but of the quest for profit, political or economic (and not just from the man in the White House who could have offered leadership and comfort but instead gave us bleach).

In "News Is Just Like Waste Management," we unpack what the coronavirus crisis has meant for journalism, including Mother Jones’, and how we can rise to the challenge. If you're able to, this is a critical moment to support our nonprofit journalism with a donation: We've scoured our budget and made the cuts we can without impairing our mission, and we hope to raise $400,000 from our community of online readers to help keep our big reporting projects going because this extraordinary pandemic-plus-election year is no time to pull back.

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