You’ve got mail

(and the FBI wants access to it)

For more general information about Fourth Amendment rights in the online era, go to and follow the links to “Privacy & Technology.”

If the government wants to read a letter the postman delivers to your mailbox, it needs a search warrant. (This remains a legal truism despite President George Bush’s bizarre statement last month that he has the right to open U.S. mail “under emergency conditions.”) A warrant also is required if the government wants to find out what you said to somebody in a private telephone conversation. This is because we have a little thing in this country called the Fourth Amendment, which protects us from having our privacy invaded unless there is evidence that we’ve done something wrong.

That’s why it’s alarming to have the Department of Justice arguing right now in federal court that the government doesn’t need a warrant to read our e-mails.

Here’s the background: A law called the Stored Communications Act, passed in 1986, forbids the interception and disclosure of e-mail without a warrant. But that law contained an exception: If the messages are more than 180-days old, they can be obtained and used against you with only a subpoena or a court order. (Hint: These are much easier for law-enforcement officers to get than a warrant.)

This exception was written way back to 1986, when the Internet was just coming into existence and widespread use of e-mail did not yet exist. In those days, storage was limited and servers were more like temporary relay stations, with e-mail recipients typically downloading messages to their own computers before opening them. Contrast that with today, where e-mail is ubiquitous, storage space is cheap and plentiful, and Web-based services—like Google, Hotmail, AOL and Yahoo—all host vast online in-boxes that allow us to better access e-mail from home, work … wherever. Most e-mails are stored for years on these servers, which basically are understood by e-mail users to constitute something like a private filing cabinet.

In other words, the law and the exception are totally out of date.

So—no surprise—a lawsuit was filed against the government over this exception in 2004 and, last July, a U.S. district judge ruled that e-mails could not be read without a warrant. But the government appealed the decision and the Justice Department is now working hard to convince a panel of federal judges on the U.S. Court of Appeals for the Sixth Circuit to overturn that decision. (To add insult to injury the government also is arguing that even new messages can be read without a warrant if their intended recipient already has read them.)

This is an absurd position for the government to be taking and everybody who uses e-mail knows it. It doesn’t take Clarence Darrow to see that this is a case where the law is lagging behind the technology. American citizens want and need the same privacy protections for e-mail as for other private communications. Let us hope that the federal court acts to protect our rights by striking down this dangerous appeal.