Following a Freedom of Information Act (FOIA) request by the American Civil Liberties Union (ACLU), the Federal Bureau of Investigation (FBI), six U.S. Attorneys' Offices, and the Justice Department’s Criminal Division, have released documents that shed further light on the Obama administration's policy regarding electronic privacy rights. Well, only to a point. According to the ACLU, the documents show that 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."
Furthermore, the Justice Department's Criminal Division withheld far more information than it actually released, and some of the documents it did release were entirely redacted (see embed below).
The lack of transparency from the government is troubling, especially given the revelations last month that the Inland Revenue Service (IRS) claimed it does not need need warrants to read people's private electronic communications. At best the documents reveal that the Obama administration's policy regarding access to private electronic communications "is in a state of chaos," while at worst they appear to show a government that is being deliberately misleading in an attempt to cover its warrantless review of private electronic communications.
Following the outcry over the IRS policy last month, including opposition from a bipartisan group of senators, Steven Miller, the IRS' acting commissioner, said that the agency would change its policy, but for email only. He did not say it would do the same for other forms of electronic communication.
Responding to the latest release, Senator Mark Udall, a Colorado Democrat, expressed his concern that the "Justice Department and FBI are justifying warrantless searches of Americans' electronic communications based on a loophole in an outdated law that the U.S. Court of Appeals for the 6th Circuit ruled was unconstitutional," and has called on Congress to update the 1986 Electronic Communications Privacy Act, a move which the ACLU supports.
According to the ACLU, the documents "paint a troubling picture of the government’s ... surveillance practices." The latest release highlights the lack of government transparency regarding its policy and the need to update a law that was passed during an "era of dialup modems and the black and white Macintosh Plus."