The FBI Can Trawl Through Your Email Archives Anytime it Wants

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Here’s a surveillance state factlet that I think I knew at one point, but have since forgotten:

Under the 1986 Electronic Communications Privacy Act, federal authorities need only a subpoena approved by a federal prosecutor — not a judge — to obtain electronic messages that are six months old or older. To get more recent communications, a warrant from a judge is required. This is a higher standard that requires proof of probable cause that a crime is being committed.

….The chairman of the Senate Judiciary Committee, Patrick Leahy, has proposed changing the law to require a warrant for all Internet communications regardless of their age. But law enforcement officials have resisted because they said it would undercut their ability to catch criminals.

As it happens, news reports suggest that the FBI did indeed get a warrant in order to trawl through the emails from Paula Broadwell and David Petraeus that are at the center of the current FBI/CIA scandal. But that shouldn’t change anything. The six-month rule simply has no reasonable basis. The FBI needs a warrant to look through my physical belongings regardless of how old they are, and that’s how it should be. Email shouldn’t be any different.

UPDATE: Julian Sanchez tweets some additional context: “Technically accurate but misleading: Subpoena for e-mail ALWAYS requires prior notice to user, opportunity to quash….For access without notice, judicial order always acquired—though not necessarily a probable-cause warrant.”

UPDATE 2: Never mind. Julian Sanchez tweets again to say prior notice isn’t required after all: “I was mistaken. The provision is confusingly framed, with “delayed notice” attatched to the “court order” subsection….But on a second look, 2705 allows delay for either orders or subpoenas. Embarrassing goof on my part; apologies….Though my understanding is that many providers will balk at turning over contents in response to a subpoena.”

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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