Think your online information is safe with a password? Think again.
Under newly disclosed documentation obtained under a Freedom of Information Act (FOIA) request, government officials may not always require a search warrant to sift through your most private emails, voice mails or even your most personal Facebook messages.
In fact, it appears that some government (cough: FBI) officials may be openly disregarding a 2010 Federal Appeals Court ruling (U.S. vs. Warshak) that declared warrant-less access to an individual’s email was a violation of their Fourth Amendment rights which protects us against unreasonable searches and seizures.
Generally speaking, it’s also what prohibits law enforcement officials from entering your home without probable cause.
In the case U.S. vs. Warshak, the defendant was never even notified that agents were intercepting his emails.
I want you to pause for just one moment to consider all of the many online transactions you make during your day. Everything, these days, seems to be digitized—emails, bank records, or a writers ramblings and musings—it’s all out there and unguarded against any ‘fishnets’ dropped into the internet waters.
When it comes to our homes, we understand this concept of preserving our reasonable right to privacy. However, when it comes to the ‘zeros and ones’ of all of this internet traffic—most people don’t seem to pay it much attention.
Thankfully, the Federal Appeals Court stood firm in the protection of our Constitutional rights—drawing that very first (and very clear) line in the sand. They ruled that agents violated Mr. Warshak’s Fourth Amendment rights by compelling his Internet Service Provider (ISP) to turn over his emails without first obtaining a search warrant based on probable cause.
And, that should have been the end of things—wouldn’t you think? I mean, if a Federal Court ruling indicates that the matter is settled…
Sadly, this issue is just a wee bit more complicated.
Specifically, a recent update to the FBI’s “Domestic Investigations and Operations Guide” suggests that a potential ‘loophole’ has been granted to federal investigators—making it ‘okay’ to seize data stored on a third party server for more than 180 days.
“[I]f the contents of an unopened message are kept beyond six months or stored on behalf of the 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.”
Wait, what just happened here?
Oh, but hold on—there’s more.
Of greater concern are the proposed changes to the 1994 Communications Assistance for Law Enforcement Act (CALEA) which already required Internet providers and even phone companies to install surveillance equipment within all of their networks.
Ah, but since they never considered the widespread use of services such as Facebook or Google Plus—lawmakers are currently scrambling to assemble a task force to close this gap, as well.
According to a recent article, the FBI is “asking Internet companies not to oppose a controversial proposal that would require firms, including Microsoft, Facebook, Yahoo and Google, to build in back doors for government surveillance.”
In fact, the FBI, and other agencies, are actively petitioning for ‘wire-tap ready’ sites, now.
Wow, that’s a whole lot of listening going on.
And though, I do fully recognize the need for access to ‘real time’ information gathering to help keep our Nation safe, in our haste are we potentially making matters worse? More access points, even when installed for good measure, invariably lead to more vulnerabilities—and have long been exploited by hackers and others with less than honorable intentions.
Which begs the question, “Are lawmakers solving one problem and creating a much bigger one?”
And though, I’m not so sure how best to handle this digital mess—I’m pretty sure that this isn’t the way to do it.
You know, it used to be that passwords actually meant something—but, I’m not quite sure what to think anymore.
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Ed: Kate Bartolotta
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