The folks at the FBI seem to have figured that if the NSA can get away with bulk data collection they can too.
While investigating a hosting company known for sheltering child porn last year the FBI incidentally seized the entire e-mail database of a popular anonymous webmail service called TorMail.This of course gets into the legal arguments over whether holding personal communications and only accessing them with a court order is allowable under the protections of the 4th amendment. It also assumes a belief in the word of government agencies that the data won't be accessed. In the case of the NSA there are documented cases of numerous incidents when it was so accessed by "mistake".
Now the FBI is tapping that vast trove of e-mail in unrelated investigations.
The bureau’s data windfall, seized from a company called Freedom Hosting, surfaced in court papers last week when prosecutors indicted a Florida man for allegedly selling counterfeit credit cards online. The filings show the FBI built its case in part by executing a search warrant on a Gmail account used by the counterfeiters, where they found that orders for forged cards were being sent to a TorMail e-mail account: “email@example.com.”
Acting on that lead in September, the FBI obtained a search warrant for the TorMail account, and then accessed it from the bureau’s own copy of “data and information from the TorMail e-mail server, including the content of TorMail e-mail accounts,” according to the complaint (.pdf) sworn out by U.S. Postal Inspector Eric Malecki.
What this seems to mean is that anybody who takes the trouble to make their communications more secure for whatever reason is taking on risk by using providers who offer higher levels of security. People who use such services as opposed to a free and insecure service like Gmail have a range of reasons for going to the additional trouble and expense. In some cases they are indeed engaged in illegal activity such as child porn or credit card fraud. However, there are entirely legitimate concerns such as protecting proprietary business information.
Up until now the focus of concern about the data of American citizens has been on the NSA. They have blanket authority to access data of non-citizens outside the US. They are supposedly subject to constitutional restrictions where citizens are concerned. There have been various efforts to get around those. This news makes it apparent that oversight of government data collection needs to be much broader.
The FBI has a long history of illegal snooping. J Edgar Hoover would be proud to know that his successors are keeping abreast of modern technology. In his day the best he could do was to plant taps on mechanical telephone systems. Isn't progress wonderful.