If the police want to go through your home, they need your consent or a warrant. The same is true if they want to sift through your mailbox. These are places where you have a certain expectation of privacy, where you do or have personal things that you may not want shared with everyone. The 4th Amendment protects you from unreasonable infringements on this privacy, by barring unreasonable searches and seizures. Interestingly, however, the FBI doesn’t seem to think this applies to them searching through your emails.
According to the ACLU, the FBI may very well be looking through emails without getting a warrant first. Though a federal appeals court ruled that emails should be protected with the same standard as any of your other personal property—requiring a warrant—the FBI seems to think otherwise.
The appeals court decision in U.S. v. Warshak said that the government must provide a probable cause warrant to email providers before compelling them to turn over the contents of your email account. But this was a court in the Sixth Circuit and it seems the federal government has only felt the need to apply the ruling to the four states within that circuit.
The ACLU requested information from the FBI on their policies regarding email searches and warrants under the Freedom of Information Act. What they received in response indicates the FBI is doing as they please.
The FBI provided the ACLU with excerpts from two versions of its Domestic Investigations and Operations Guide (DIOG), from 2008 and 2012. One of the Guides is from before Warshak was decided and the other one is from after, but they say the same thing: FBI agents only need a warrant for emails or other electronic communications that are unopened and less than 180 days old. The 2012 Guide contains no mention of Warshak, and no suggestion that the Fourth Amendment might require a warrant for all emails.
In addition to the FBI, U.S. Attorneys’ offices offer conflicting information on the government’s ability to access emails without a warrant. Through the ACLU’s work it seems as if everyone is acting as though they will continue to do as they please until told otherwise. In other words, because they were explicitly told that emails require a warrant, they will just continue infringing on the privacy rights of citizens across the board.
Generally, if you have a legitimate expectation of privacy, law enforcement must obtain a warrant for a search. Failing to do so could negate the worth of any evidence they find as a result. But the law hasn’t evolved with the times. The ACLU is campaigning for that to change, and you can help here.
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About David Matson