Justice Dept. drops fight against tougher rules to access e-mail

The Justice Department has dropped its long-standing objection to proposed changes that would require law enforcement to get a warrant before obtaining e-mail from service providers, regardless of how old an e-mail is or whether it has been read.

“There is no principled basis” to treat e-mail less than 180 days old differently than e-mail more than 180 days old, Elana Tyrangiel, acting assistant attorney general in the department’s Office of Legal Policy, said Tuesday.

Tyrangiel, testifying before a House Judiciary subcommittee, also said that opened e-mail should have no less protection than unopened e-mail.

Current law requires law enforcement to obtain a warrant before gaining access to e-mail that is 180 days old or less if it has not been opened. But prosecutors may obtain e-mail older than 180 days, or any e-mail that has been opened, with a mere subpoena.

Prosecutors can obtain a subpoena if they believe that the material sought would be relevant to an investigation. For a warrant, they need to convince a judge that the e-mail contains probable cause of a crime.

The department’s shift means that legislative efforts to amend the 1986 Electronic Communications Privacy Act stand a better chance at succeeding. Lawmakers have drafted legislation that would impose a warrant requirement for all e-mail held by commercial providers.

In practice, since a 2010 ruling by the U.S. Court of Appeals for the 6th Circuit requiring a warrant for stored e-mail, most large commercial e-mail providers, such as Google and Yahoo, have adopted that standard.

That has made it harder for the department to argue that a warrant requirement undermines public safety, said Jason Weinstein, a former deputy assistant attorney general in the criminal division.

“It’s a good thing that the department has taken this step and publicly acknowledged that some of these distinctions are no longer meaningful,” he said.

The department’s “reversal is a welcome step forward,” said American Civil Liberties Union legislative counsel Chris Calabrese. “They seem to be agreeing with companies and groups across the political spectrum that a warrant is the right standard for e-mail.”

The Justice Department does not support a uniform warrant standard for all e-mail. In her testimony, Tyrangiel argued that civil investigative agencies that do not have warrant authority, such as the Securities and Exchange Commission, must not lose their ability to obtain e-mail with a subpoena.

Ellen Nakashima is a national security reporter for The Washington Post. She focuses on issues relating to intelligence, technology and civil liberties.
Show Comments

Get the WorldViews newsletter

Sign up for daily updates from WorldViews.

Most Read World