When you go to your email account, how secure do you think your messages are? Do you think you’re the only one to see that private email or facebook chat? As a result of the Freedom of Information Act (FOIA), the American Civil Liberties Union disclosed to the public that the FBI believes it has the authority to open those emails, and at any time. The following is a short section of the FBI’s Domestic Investigations and Operations Guide.
220.127.116.11.4.3 (U) MAIL OPENINGS
(U) Mail in United States postal channels may be searched only pursuant to court order, or presidential authorization. United States Postal Service regulations governing such activities must be followed. A search of items that are being handled by individual couriers, or commercial courier companies, under circumstances in which there is a reasonable expectation of privacy, or have been sealed for deposit into postal channels, and that are discovered within properties or premises being searched, must be carried out according to unconsented FISA or FRCP Rule 41 physical search procedures.
18.104.22.168.4.4 (U) COMPELLED DISCLOSURE OF THE CONTENTS OF STORED WIRE OR ELECTRONIC COMMUNICATIONS
(U) Contents in "electronic storage" (e.g., unopened e-mail and voice mail) require a search warrant. See 18 U.S.c. § 2703(a). A distinction is made between the contents of communications that are in electronic storage (e.g., unopened e-mail) for less than 180 days and those in "electronic storage" for longer than 180 days, or those that are no longer in "electronic storage" (e.g., opened e-mail). In enacting the ECPA, Congress concluded that customers may not retain a "reasonable expectation of privacy" in information sent to network providers. However, the contents of an e-mail message that is unopened should nonetheless be protected by Fourth Amendment standards, similar to the contents of a regularly mailed letter. On the other hand, if the contents of an unopened message are kept beyond six months or stored on behalf oft he customer after the e-mail has been received or opened, it should he treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment. If a search warrant is used, it may be served on the provider without notice to the customer or subscriber.
To summarize the above document, the Electronic Communications Privacy Act (ECPA), the current law regarding government access to your online resources, requires that for UNOPENED emails a warrant must be issued to the recipient before access is granted to the FBI. However, if the email has ALREADY been opened or has been UNOPENED FOR 180 days, then the FBI merely needs a subpoena and does not need to inform the recipient.
And this issue does not only stand with the FBI. The IRS too last month was exposed as having a warrantless email access policy under ECPA. Before a Senate hearing, the acting commissioner of the IRS stated that the policy would be changed for email. And while that might bring a satisfying sigh to some, the fact remains that he said nothing of the other modes non-email data that he conveniently left out such as facebook chats, direct tweets, google drive files, dropbox files, etc.
In the changing world in which we live, the concept of privacy is becoming less of a right, and more of a commodity. So keep in mind everything you put or keep out there in the world wide web. While being among one of the most inviting places to go, it is also the most demanding place to exercise caution.