Electronic Communications Privacy Act of 1986 (ECPA)
This is the law that lets the authorities read your emails without a warrant.
More information from Justice Information Sharing
THE AUTHORITIES CAN READ YOUR EMAIL BEHIND YOUR BACK WITHOUT YOU EVER KNOWING IT HAPPENED
According to the ECPA, law enforcement authorities (such as the NSA, the FBI and even the IRS) are allowed to read your open emails, along with emails that are 180 days or more old. This authority comes from a law that was established in 1986, way before email communications became widespread.
Under the ECPA, the contents of an unopened message that are 180 days old or more can currently be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In this case, the government is allowed to subpoena the records from a third party (your email provider) without running afoul of the fourth or fifth amendment.
As the law stands now, federal agencies can send a company (like Google) a subpoena demanding access to data stored in the cloud (as long as that data has either been opened, or is 180 days or more old). Many users may not even realize that their privacy has been breached, because the government can deal directly with the provider without even getting the user involved. However, if the email is not opened, and is not 180 days old, the authorities would be required to get a warrant and then the target of the warrant would become aware of the investigation. Therefore, someone could go to Google behind your back and read your emails without you ever even knowing it happened.
THE LEGAL LANGUAGE THAT ALLOWS AUTHORITIES TO SNOOP THROUGH YOUR EMAIL
The section that allows the feds to read old emails is here. The exact text that allows this warrantless email access states the following:
A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.
The FBI has recently provided the ACLU with documents further explaining this warrantless search of emails that are more than 180 days old. The standards come from the FBI's "Domestic Investigations and Operations Guide" (DIOG) from 2008 and 2012. The documents do not explicitly state whether FBI agents always get a warrant or not. However, there is language that suggests that a search without a warrant is possible, when the document is 180 days old.
On one hand, the 2012 FBI Guide states the following in section 18.6.8.2.3 (U) Retrieval:
"Contents held by those who provide "remote computing service" to the public and contents held in "electronic storage" for more than 180 days by an "electronic communication service" provider can be obtained with: a warrant; a subpoena with prior notice to the subscriber or customer; or an order issued by a court under 18 U.S,C, § 2703(d) when prior notice has been provided to the customer or subscriber (unless the court has authorized delayed notice). "
However, if the court has authorized "delayed notice," the following can happen:
"Title 18 U,S,C, § 2705 establishes the standard to delay notice for an initial period of up to 90 days, Records or other information pertaining to a subscriber to or customer of such services, including basic subscriber information, can be obtained with a search warrant or an 18 U.S,C, § 2703(d) order without notice."
Opened Emails do not have any privacy protections from federal search. According to the FBI's Domestic Investigations and Operations Guide, an opened email is no longer in "electronic storage" and therefore, customers may not retain a "reasonable expectation of privacy." (Arstechnica). We have included the provision that states this below:
18.7.1.3.4.3 (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.
18.7.1.3.4.4 (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.
THE FIGHT FOR ELECTRONIC PRIVACY
Fortunately, there is a lot of bipartisan support for a bill to protect the privacy of Americans against an unlawful search of their email. The Email Privacy Act of 2015 would remove the expiration date on privacy under the argument that the ECPA threatens the Fourth Amendment. Kevin Yoder and Jared Polis introduced the Email Privacy Act in the House last Congress, which received support from more than 270 members.
In the Senate, the ECPA Amendments Act, written by Sens. Patrick J. Leahy and Mike Lee, passed the Senate Judiciary Committee unopposed. Both bills would simply have required that government agents obtain a warrant from a judge by showing probable cause to believe a crime is being committed before they may access information we store online for any length of time
THE EMAIL PRIVACY ACT OF 2015
House Bill: H.R.699 (292 cosponsors)
Lastest major action: 3/17/15, Referred to House subcommittee Status: Referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. )
THE ELECTRONIC PRIVACY ACT OF 2015
A BILL TO END THE 180 DAY OLD, WARRANTLESS EMAIL SEARCHES
Senate Bill S.356 (20 cosponsors)
Latest Major Action: 2/4/2015, Referred to Senate committee. Status: Read twice and referred to the Committee on the Judiciary.
House Bill: H.R.283 (4 cosponsors)
Latest Major Action: 2/2/2015, Referred to House subcommittee. Status: Referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.
RELATED LINKS
It’s Not Just the NSA—the IRS Is Reading Your Emails Too (Truthdig, 7-9-15)
The Feds don’t need digital backdoors – they can hack you (Aljazeera, 7-17-15)
How Congress Can Protect Americans' Email Privacy | Commentary (Roll Call, 1-27-15)
No One is Talking About The Insane Law That Lets Authorities Read Any Email Over 180 Days Old (Business Insider, 6-7-13)
Eric Holder endorses warrants for e-mail. It’s about time. (Washington Post, 5-16-13)
FBI Believes It Can Conduct Warrantless Email Searches, New Documents Show (Huffington Post, 5-10-13)
FBI claims right to read your e-mail, just like other federal agencies (Arstechnica, 5-8-13)
FBI Documents Suggest Feds Read Emails Without a Warrant (ACLU, 5-8-13)
IRS tells agents it can snoop on emails without warrant, internal documents show (Fox News, 4-11-13)