Facebook Privacy: Does the FBI Need a Warrant to Read Your Cyber Messages?

Anyone whose social networking career predates The Facebook in 2004 with a Myspace account in 2003 will remember this familiar, welcoming face, the first digital friend we ever made and one which we all shared in common: Tom (whose cyber life apparently lives on to this day through his Twitter account). Even though we didn’t know Tom, we eagerly let him call us his friend so that he could walk us through the new world of social media.

I can’t help but think back on Tom and our instantaneous internet friendship when I hear about Attorney General Eric Holder, the U.S. Department of Justice, and the FBI, all openly admitting to simulating my “friends” or “followers” or “circle members” online, only to suck information straight from my personal digital accounts.

Earlier last month, the American Civil Liberties Union collected documents that suggest that Justice Department prosecutors and investigators believe they are not legally required to obtain warrants to read private emails, Facebook chats, Twitter direct messages, and other personal digital files. Private files stored on Apple, Google, or Microsoft servers are all being unwarrantedly scrutinized by government officials under subpoenas: Legal pieces of papers signed by prosecutors, not judges, and being applied to different and conflicting standards in U.S. Attorneys’ offices across the country.

As we all know, the Fourth Amendment protects our “persons, houses, papers, and effects” from unreasonable searches and seizures. In the development of digital property, the amendment has been extended to also cover personal hard drives from unwarranted investigation. Even the general rule erected in 1986 that police could obtain Americans' email messages if more than 180 days old with an administrative subpoena – also known as a 2703(d) for those of us who are legally-inclined – without a warrant's probable cause changed in 2010 with the U.S. v. Warshack case, which from that point on enforced warrants for the search of all e-mail content (though, technically, didn’t directly deal with the investigation of non-email files).

Even still, the FBI claims not to be at all at fault for the post-2010 targeted actions in these recent ACLU accusations. In fact, in a recent statement, the organization denied any illegal activity at all:

In all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines. Our 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. 

And, unfortunately, contradicting Fourth Amendment, PATRIOT Act, and Stored Communications Act legislation might actually legitimize every party’s action in this messy case. That’s to say, everyone might be somehow acting within the confines of the law.

It is clear that America has, and will continue to, struggle with finding a balance between liberties and securities in this developing internet age. Congress has to get a hold of the situation, and quickly. Create legislation that tips the scale one way or the other. Am I to speak freely and privately with my friends on Facebook, or am I to constantly wonder if my words are being read by an outside party? What’s to gain and what’s to lose? A decision must be made.