Thursday, April 21, 2011

Obama DOJ: We Won't Say If We Intend Warrantless Reading Of Emails, Texts

ACLU Blog of Rights:

Last week the Justice Department squandered an opportunity to reassure Americans that as technology advances our civil liberties will not be left behind. The Justice Department was called before Congress to say whether it should be permitted to read people's email, text messages and other electronic communications without a probable cause warrant — that is, without a judicial determination that it has a good reason to believe a search will turn up evidence of a crime. The clear answer to this question should have been "no." After all, a warrant has been required for postal mail since at least the 1870s and for telephone conversations since the 1960s. Why shouldn't our email receive the same protection?

Unfortunately, instead of agreeing whole-heartedly with this basic concept of constitutional law, the Justice Department refused to take a position one way or another — leaving members of Congress and the public to wonder: does the Obama administration believe it should be able to read our text messages and emails without a warrant? This dismaying development proves once again that the courts and Congress have a vital role to play in keeping government surveillance in check and ensuring that Americans' privacy rights are fully protected.

(Emphasis mine.) If you voted for Obama, did you anticipate your basic rights, including privacy, would be better protected than they would have been under, say, John McCain? Many of us did vote for him with that expectation among others, only to learn that there is actually very little difference between the Obama administration and the Bush administration in matters of civil liberties: both presidents and their administrations seem not to give a good damn whether they comply with the Bill of Rights or not.

There is no question that the technological means exist for the federal government to capture literally all emails and text messages. We know they already do it with all international phone calls; it wouldn't surprise me if they already do it with emails and texts. But things are not really constitutionally different between letter mail and email: if the former is protected from government snoops absent probable cause and a warrant, the latter should be protected, too. Text messages are in some ways more like phone calls than emails: they are by their nature short, interactive and real-time. Considering all the innocent "Luv, I be off wk 7pm; shld I buy bread on way hm?" messages that are almost certainly scooped up already whether or not the feral gummint actually reads them, the degree of invasion of personal privacy inherent in warrantless searches of text messages is enormous.

So this is a big deal. At base, we either have privacy in our communications, including privacy from government snooping, or we don't, and scenes from the novel "1984" come to mind. Why is the Obama DOJ so reluctant to stand on the side of our constitutional rights? Exactly what does it intend to do with that information acquired by warrantless searches?

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