Tuesday, January 16, 2007

4th Amendment technologically out of date?

Police are supposed to have warrants to search your home or person - and "no warrant shall be issued without probable cause" - but increasingly the most important parts of our lives are available to government snooping without warrant or probable cause, as The Washington Post points out:

The law makes a distinction between intercepting e-mail in transit and obtaining stored e-mail from a service provider's servers. The distinction made sense in the 1980s and early 1990s when downloaded e-mail often sat only on the user's computer. If the government wanted the records, it had to go to the e-mail recipient.

These days, most e-mail is held and stored by third parties. So the government claims the authority to read someone's most intimate communications, including stored chat sessions, by serving a subpoena -- no probable cause required. A person may never even know that this has been done, as there is no legal requirement for an Internet service provider to provide notice. In most cases where the government subpoenas the e-mail, it demands that the third party keep that fact confidential, at least for a while.

The same holds true for virtually any information held by a third party: phone company records that indicate who called you, when they called and how long the call lasted; Internet service provider records on what Web sites you visited, when and for how long; tollbooth records; security camera footage; records of emergency calls made from a car; supermarket purchase records. All that and more can be requested by the government with a search warrant, or sometimes with an administrative subpoena or other demand, frequently without judicial review.

Since the Sept. 11 attacks, the government also has vastly increased its power to obtain Americans' private financial, phone-call and Internet-transaction data using national security letters, which do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The FBI issues more than 30,000 a year, The Washington Post reported in 2005. And the Pentagon issues its own version, the New York Times reported on Sunday.

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