DOJ says they don't need warrants for e-mail, Facebook chats

[better-dead-than-fed]

DOJ: We don't need warrants for e-mail, Facebook chats

An FBI investigation manual updated last year, obtained by the ACLU, says it's possible to warrantlessly obtain Americans' e-mail "without running afoul of" the Fourth Amendment.

The U.S. Department of Justice and the FBI believe they don't need a search warrant to review Americans' e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.

Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they're not legally required to obtain search warrants for e-mail....

... The Justice Department's disinclination to seek warrants for private files stored on the servers of companies like Apple, Google, and Microsoft continued even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment....

full article here: http://news.cnet.com/8301-13578_3-57583395-38/doj-we-dont-need-warrants-for-e-mail-facebook-chats/

[phill4paul]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1]

"Shall not" is a very loose term in D.C.

[Warrior_of_Freedom]

Reading everyone's e-mails is no different than opening up everybody's tangible mail and reviewing it before delivering it.

[erowe1]

I haven't read the article. But I'm guessing that the loophole is that they have the voluntary cooperation of the email providers, who ostensibly have a right to do whatever they want with the information that passes through them.

[asurfaholic]

Private communication not posted in a publicly viewable area is just that - private. The government need for a warrant to obtain the info is absolute.

[erowe1]

The government need for a warrant to obtain the info is absolute.

Based on what?

[Schifference]

Well then if it is not protected maybe some Super Joe Hacker could display all emails from govt and politicians.

[shane77m]

and there isn't a good reason to have an open carry protest in Washington over a government hell bent on squashing God given/natural rights.............

[erowe1]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1]

"Shall not" is a very loose term in D.C.

They don't need for "shall not" to be a very loose term. Notice that nowhere in that quote does it say anything at all about the government being prohibited from doing anything without a warrant.

[better-dead-than-fed]

... I'm guessing that the loophole is that they have the voluntary cooperation of the email providers, ...

That's not the case, according to http://thehill.com/blogs/hillicon-valley/technology/279441-facebook-email-providers-require-warrant-for-private-data:


Google, Microsoft, Yahoo and Facebook ... said that ... they began requiring police to have a warrant before turning over email information for any of their customers.

I think the loophole might be Olmstead v. United States, 277 US 438 - Supreme Court 1928 (http://scholar.google.com/scholar_case?case=5577544660194763070):


... the ... question whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wire tapping, amounted to a violation of the Fourth and Fifth Amendments.

... The (4th) Amendment does not forbid what was done here (wiretapping).

... The language of the Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.

... Congress may of course protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal criminal trials, by direct legislation, and thus depart from the common law of evidence. But the courts may not adopt such a policy by attributing an enlarged and unusual meaning to the Fourth Amendment.

[ninepointfive]

This ship has sunk. the USA is doomed to tyranny unless something seriously changes

[phill4paul]

They don't need for "shall not" to be a very loose term. Notice that nowhere in that quote does it say anything at all about the government being prohibited from doing anything without a warrant.


no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No "thing", papers, shall be seized, unless a warrant, based upon probable cause, and particularly describing the place to be searched is issued supported by Oath or affirmation. I think it clearly states that no thing shall be seized without a warrant.

[erowe1]

No "thing", papers, shall be seized, unless a warrant, based upon probable cause, and particularly describing the place to be searched is issued supported by Oath or affirmation. I think it clearly states that no thing shall be seized without a warrant.

But it doesn't say that. What you just wrote is your own words, not in the Constitution.

[nobody's_hero]

Well then if it is not protected maybe some Super Joe Hacker could display all emails from govt and politicians.

Well, then, we shouldn't even need a hacker. This is a serious double-standard you bring up. If electronic information isn't private, than we'd better have access to every electronic file in the gov't's possession. You'll see how quickly they change their opinion on whether or not electronic information is private or not.

[phill4paul]

But it doesn't say that. What you just wrote is your own words, not in the Constitution.

If you parse the words they are EXACTLY the same words written in the Constitution. I was attempting to make it easier for you to understand. Apparently, we have differences in the understanding of the words and phrases. I have attempted to arrange them in a manner that you might understand. You continue to simply keep stating that is says nothing of the kind without offering your reasons why it does not.

[better-dead-than-fed]

... according to http://thehill.com/blogs/hillicon-valley/technology/279441-facebook-email-providers-require-warrant-for-private-data:


Google, Microsoft, Yahoo and Facebook ... said that ... they began requiring police to have a warrant before turning over email information for any of their customers.

... Olmstead v. United States, 277 US 438 - Supreme Court 1928 (http://scholar.google.com/scholar_case?case=5577544660194763070):


... The (4th) Amendment does not forbid what was done here (wiretapping).

The case I cited about wiretapping is irrelevant, because the DOJ is using subpoenas to compel companies to disclose info, under 18 USC 2703 (http://www.gpo.gov/fdsys/granule/USCODE-2011-title18/USCODE-2011-title18-partI-chap121-sec2703/content-detail.html)(b)(1):


A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication ... (B) ... if the governmental entity-- (i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena....

A subpoena does not require probable cause. I don't see how Google, Microsoft, Yahoo, and Facebook can supposedly require a warrant, if the DOJ serves a subpoena on them. Anyway, according to United States v. Jacobsen, 466 US 109 - Supreme Court 1984 (http://scholar.google.com/scholar_case?case=16573686290496533405),


A "search" (under to the Fourth Amendment) occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.

The Sixth Circuit says that 18 USC 2703(b)(1) violates the Fourth Amendment under Jacobsen. US v. Warshak, 631 F. 3d 266 - Court of Appeals, 6th Circuit 2010 (http://scholar.google.com/scholar_case?case=1170760837547673255):


We hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails "that are stored with, or sent or received through, a commercial ISP." ... The government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment.... Moreover, to the extent that the SCA (18 USC 2703) purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.

Olmstead v. United States, 277 US 438 - Supreme Court 1928 (http://scholar.google.com/scholar_case?case=5577544660194763070), Justice Brandeis dissenting:


If the Government becomes a lawbreaker, it ... invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.

[Christian Liberty]

None of this matters, as Kinsella so clearly pointed out in an old article that I read recently. The bottom line is, whether the second amendment, or the fourth, is ambiguous or not, any FEDERAL search of emails is prohibited by the 10th amendment.

[Aratus]

the cloud as a storage system turns all into a public place that is overly paid for
whereas earthlink and compuserve in the era of the 286 + 386 + 486 assumes all
machines are private or corporate who collect digital pulses into a readable format.

[tod evans]

Didn't Holder just inform Kansas that the feds are going to do what they want and the citizens of Kansas are going to like it....

Sounds kinda like they're freewheelin' up there in DC...

Still.....:mad:

[erowe1]

If you parse the words they are EXACTLY the same words written in the Constitution. I was attempting to make it easier for you to understand. Apparently, we have differences in the understanding of the words and phrases. I have attempted to arrange them in a manner that you might understand. You continue to simply keep stating that is says nothing of the kind without offering your reasons why it does not.

But they aren't exactly the same. And the difference is precisely my point.

Your version prohibits seizing anything without a warrant. The Constitution doesn't. If you think it does, you need to read it again.

I don't need to give any more reasons. You yourself copied and pasted the part of the Constitution that you thought said that. And, as anyone can see who reads it, it doesn't say that.

[jclay2]

This ship has sunk. the USA is doomed to tyranny unless something seriously changes

Agreed. Not a lot we can really do when the slaves WILLINGLY worship their masters.

[Dr.3D]

But it doesn't say that. What you just wrote is your own words, not in the Constitution.
4th amendment of the United States Constitution.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This is what is written in the U.S. Constitution.

[heavenlyboy34]

Private communication not posted in a publicly viewable area is just that - private. The government need for a warrant to obtain the info is absolute.It could be argued that the entire internet is "publicly viewable". /devil's advocate

[erowe1]

4th amendment of the United States Constitution.

This is what is written in the U.S. Constitution.

Notice that nowhere in that quotation does it prohibit the government from doing anything at all without a warrant.

If you think it does, you need to read it again.

[Matt Collins]

remember that the US Intel community funded Twitter and Facebook initially.

[paulbot24]

It could be argued that the entire internet is "publicly viewable". /devil's advocate

I'll take you up on this. :D Then why did the FBI need to get a warrant to look at Petreus' email?

[heavenlyboy34]

I'll take you up on this. :D Then why did the FBI need to get a warrant to look at Petreus' email?
Petreus is part of the government caste. I don't know of any other reason. :/

[phill4paul]

Notice that nowhere in that quotation does it prohibit the government from doing anything at all without a warrant.

If you think it does, you need to read it again.

SMFH. If you defend your position only by telling people, time and again, to re-read it then... I'm done.

[erowe1]

SMFH. If you defend your position only by telling people, time and again, to re-read it then... I'm done.

What more is there to do?

Both you and he copied and pasted the exact quote. All anyone has to do is read it to see that nowhere in it does it prohibit the government from doing anything without a warrant. It's not just a matter of interpretation. There is no way of reading the 4th Amendment that makes it say that government can't do anything without a warrant. You practically admitted this by the way you had to give your alternate version that said that.

[DamianTV]

Why dont they just say what they really meant: "We dont need no stinking Warrants, for ANYTHING"!