May 8, 2013 at 3:23 PM ET
The FBI and some U.S. Attorneys' offices around the country may be reading emails without a warrant, according to documents obtained by the ACLU and made public Wednesday.
The documents "paint a troubling picture of the government’s email surveillance practices," wrote Nathan Freed Wessler, attorney with the ACLU's Speech, Privacy and Technology Project, in a blog posting.
"Not only does the FBI claim it can read emails and other electronic communications without a warrant — even after a federal appeals court ruled that doing so violates the Fourth Amendment — but the documents strongly suggest that different U.S. Attorneys’ offices around the country are applying conflicting standards to access communications content," he wrote.
The Fourth Amendment protects citizens against unreasonable searches and seizures.
"The documents we received from the FBI don’t flat out tell us whether FBI agents always get warrants, but they strongly suggest that they don’t."
The ACLU obtained documents from the FBI and U.S. Attorneys' offices via federal Freedom of Information Act requests.
The FBI told NBC News, via an emailed statement, that in "all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines."
The bureau's field offices "work closely with U.S. Attorney’s Office to adhere to the legal requirements of their particular districts as set forth in case law or court decisions/precedent."
NBC News also contacted the Department of Justice for comment, and will update this post when we hear back.
Last month, the ACLU shared IRS Criminal Tax Division memos and manuals which indicated the agency is not always following a 2010 appellate court ruling that the government must obtain a warrant before ordering email providers to turn over messages. That information also was obtained through a FOIA request.
In a statement to NBC News then, the IRS did not directly address the ACLU's concerns, but did say "Respecting taxpayer rights and taxpayer privacy are cornerstone principles for the IRS. Our job is to administer the nation's tax laws, and we do so in a way that follows the law and treats taxpayers with respect."
The ACLU said the FBI and U.S. Attorneys' Office documents show "if nothing else" that "federal policy around access to the contents of our electronic communications is in a state of chaos. The FBI, the Executive Office for U.S. Attorneys, and DOJ Criminal Division should clarify whether they believe warrants are required across the board when accessing people’s email."
The civil liberties organization is also pushing for passage of amendments to the federal Electronics Communication Privacy Act. The act was passed in 1986, before email and the Internet became part of everyday life.
The law, as now written, does not require the government to have a search warrant when requesting access to emails and messages more than 180 days old that are stored online. Such information can be gathered by obtaining a subpoena, which is easier to get than a warrant.
A bill by Sen. Patrick Leahy, D-Vermont — who authored the original ECPA bill 27 years ago — would update the law by requiring a search warrant if the government wants to read emails stored with third-party providers, such as Google or Yahoo.
It would also eliminate the 180-day rule and require the government to notify a person whose emails or other electronic communications have been disclosed, within 10 days of obtaining a search warrant. The bill is making its way through the Senate.
“When ECPA was enacted, email was primarily a means of communicating information, not storing it," Leahy said in a statement. "Today, we use our email accounts as digital filing cabinets, where we store many of the personal documents and sensitive information that the Fourth Amendment was meant to protect. This bill takes an essential step toward ensuring that the private life of Americans remains private.”
This story was updated at 4:30 p.m. ET May 8.