The Washington Post

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.



Success! Check your inbox for details. You might also like:

Please enter a valid email address

See all newsletters

Show Comments

Sign up for email updates from the "Confronting the Caliphate" series.

You have signed up for the "Confronting the Caliphate" series.

Thank you for signing up
You'll receive e-mail when new stories are published in this series.
Most Read



Success! Check your inbox for details.

See all newsletters

Your Three. Video curated for you.

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.