Ellen Nakashima has a blockbuster article in the Washington Post about how the
Justice Department has dropped its long-standing objection to proposed changes that would require law enforcement to get a warrant before obtaining e-mail from service providers, regardless of how old an e-mail is or whether it has been read.This is a huge civil liberties victory, but one that may be illusory because so many other devices in the government's secrecy toolkit can skirt it: non-public (or even acknowledged) OLC memos, National Security Letters, "secret interpretations" of Section 215 of the Patriot Act...
Elana Tyrangiel, acting assistant attorney general for DOJ's Office of Legal Policy testified before a House Judiciary subcommittee about what is a major policy shift in surveillance.
The 180-Day Rule
Currently, law enforcement must obtain a warrant to gain access to e-mail that is 180-days-old or less if it has not been opened. But e-mails more than 6-months-old are fair game. Prosecutors can subpoena them. The Justice Department now says "there is no principled basis" to treat e-mail younger than 180 days differently than older e-mail.
Opened vs. Unopened E-mail
Currently, law enforcement can subpoena any e-mail that has been opened--no matter what its age. The Justice Department shift would now require a warrant regardless of whether e-mail has been opened or read.
What's the significance?
This could make easier congressional efforts to amend the outdated Electronic Communications Privacy Act of 1986 (ECPA). Technology has outpaced ECPA, resulting in conflicting court decisions and, more importantly, a rubric under which the vast amount of personal information generated by today's digital communication services are not adequately protected.
This also means that the Justice Department is in effect adopting the 6th Circuit's 2010 ruling that requires a warrant for stored e-mail. (Google, Yahoo and other commercial e-mail providers have been using, indeed clinging to, this standard, so it will be comforting that they will not be in legal jeopardy for doing so.)
Why does this not solve the Fourth Amendment problem?
This development raises as many questions as it answers.
Is there a secret Office of Legal Counsel (OLC) memo interpreting the Department's relenting on e-mail rules?
How does this square with the plain language of Section 215 of the Patriot Act, which allows the government to obtain records of citizens' activities being held by a third party? How does it square with the "secret interpretation" of this section, which is apparently broader than the already expansive language, but that no one knows or can contest?
What impact does this have on National Security Letters (NSL), which are demand letters, not subpoenas? The government has a propensity for invoking the magic words "national security" for just about every controversial thing it does. NSL's have been a popular tool with which the government can obtain individuals' records and data from Internet Service Providers (who are are barred by a gag order provision from notifying the customer, or anyone.)