The FBI still holds that it can access private emails without a warrant, according to a 2012 internal document released today by the American Civil Liberties Union. The practice has been in question since a 2010 federal court ruling found that Fourth Amendment rights extend to emails stored in the cloud. But while the ruling offers legal guidance on how to obtain digital communications during an investigation, it only applies to four states because of the court's jurisdiction.
The FBI says whatever it's doing is within the law
Rather than following the ruling's guidance, the FBI is still including an Electronic Communications Privacy Act (ECPA)-granted ability within its Domestic Investigations and Operations Guide, which would allow the organization to obtain relevant, opened emails more than 180 days old without a warrant. It's unclear whether the organization has used this ability, but it claims to be operating within applicable legal rules. According to CNET, the FBI said in a statement that it obtains all evidence in accordance with US laws and regulations.
The legality of this practice has been a big question for government organizations lately. Earlier this year, the Justice Department — in a change of course — signaled that it could move toward requiring warrants for obtaining emails. And last month, the IRS announced that it follows the 2010 court ruling, after the ACLU released documents revealing that it too may be using the ECPA granted ability. The issues have led Congress to work toward reforming the ECPA. A new amendment would make a warrant necessary when obtaining any type of electronic communication, regardless of its age or whether it had been read. Though the amendment has passed a committee, it has yet to hit the House or Senate.