EFF Challenges Government's 'Back Door Wiretap'

Electronic Frontier Foundation Media Release

For Immediate Release: Thursday, June 11, 2009

Contact:

Kevin Bankston
   Senior Staff Attorney
   Electronic Frontier Foundation
   bankston@eff.org
   +1 415 436-9333 x126

EFF Challenges Government's 'Back Door Wiretap'

Urges Court to Rule Email Privacy Is Constitutionally
Protected

Cincinnati - The Electronic Frontier Foundation (EFF) and
other civil liberties groups filed an amicus brief in
Warshak v. United States urging the 6th U.S. Circuit Court
of Appeals Wednesday to hold that the government's seizure
of email without a warrant violated the Fourth Amendment
and federal privacy statutes, as well as the Justice
Department's own surveillance manual.

During its criminal investigation, the Department of
Justice illegally ordered defendant Stephen Warshak's email
provider to prospectively "preserve" copies of his future
emails, which the government later obtained using a
subpoena and a non-probable cause court order.  The
government accomplished this "back door wiretap" by
misusing the Stored Communications Act (SCA), which is only
supposed to be used for obtaining emails already in storage
with a provider.

In Wednesday's filing, EFF argues that the government's
seizure violated federal privacy laws and Warshak's Fourth
Amendment expectation of privacy in his email.  As a
result, the illegally seized emails should have been
suppressed by the district court where Warshak was tried.
All told, the government acquired over 27,000 emails
spanning over six months from Warshak's email provider, all
without probable cause.

"The Justice Department not only violated the Fourth
Amendment and federal privacy statutes but its own
surveillance manual when it conducted this 'back door
wiretap' to intercept six months worth of emails without a
warrant," said EFF Senior Staff Attorney Kevin Bankston.
"Thankfully, this abuse has given the appeals court yet
another opportunity to clarify that the Fourth Amendment
protects the privacy of email against secret government
snooping, even when it's in the hands of an email
provider."

EFF filed a similar amicus brief with the 6th Circuit in
2006 in a civil suit brought by Warshak against the
government for its warrantless seizure of his emails.
There, the 6th Circuit agreed with EFF that email users
have a Fourth Amendment-protected expectation of privacy in
the email they store with their email providers, though
that decision was later vacated on procedural grounds.

"The government's illegal email surveillance in this case
raises troubling questions about how often the Justice
Department has bent the law or broken it outright in other
criminal investigations," said Bankston.  "This 'back door
wiretap' is yet another demonstration of why Congress must
update the federal surveillance statutes to require
comprehensive reporting on how the government is using its
spying authorities."

The amicus brief was also signed by the ACLU of Ohio and
the Center for Democracy and Technology.

For the full amicus brief:
http://www.eff.org/files/filenode/Warshak_EFF_Amicus_Brie...

For this release:
http://www.eff.org/press/archives/2009/06/11

About EFF

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at http://www.eff.org/


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