Your Old E-Mail Can be Read Without a Warrant

What do you do with your old e-mails?  Do you just let them sit in the “Read Mail” folder, or do you permanently delete them?  If you let them sit until they automatically disappear from the “Read Mail” folder, you may have a problem. 

If you have e-mail that is over 180 days old stored in a cloud server, it is considered “legally abandoned” and can be read by any government agency without obtaining a warrant.  This means that if you use Yahoo! Mail, Hotmail, AOL Mail, G-Mail, etc, your privacy could be at risk.  If you store your e-mail on your hard drive, however, a search warrant is needed no matter how old the mail is.

The law that permits the release of e-mail without a warrant is the Electronic Communications Privacy Act (ECPA), which is from 1986.  In 1986, most people who used e-mail would delete it immediately after reading it to save on computer storage space.  There was very little chance that your average citizen would have an e-mail in storage that was 180 days old. Today, however, with the use of cloud servers, storage space is just about unlimited.  E-mails are read, then left forgotten in the “Read Mail” files.  Unfortunately, the laws haven’t been updated to keep up with the rapidly growing technology.

Recently, the ACLU requested information from the IRS under the Freedom of Information Act.  In response, the IRS indicated that their criminal investigation department does read citizens’ e-mails without obtaining search warrants.  This is one of the reasons why an update of the ECPA is needed in order to protect the privacy of all US citizens when it involves any digital communications.

The ACLU also sent a request under the Freedom of Information Act to the FBI.  The response indicated warrants aren’t generally gotten, but the FBI wouldn’t come out and say for sure.  As a way of explanation, the FBI provided the ACLU with excerpts from two of its Domestic Investigations and Operations Guides; one from 2008 and one from 2012.  Both state that “FBI agents only need a warrant for emails or other electronic communication that are unopened and less than 180 days old.”  

Obviously, the time for modification of the ECPA is well over-due.  Since 1877, any government agency was required to obtain a warrant to read any personal mail sent via the US Postal Service.  Now is the time for this policy to be expanded to include e-mail and any other electronic communications.  In the meantime, if you want to keep your privacy, make sure you use the “Delete Permanently” button provided each time you read your e-mail.  For most of us, this isn’t a matter of covering up criminal activity; it’s to protect our privacy.

 Please go to the top of this page and download the free Internet Privacy Guide.  There are many other tips and suggestions on how your privacy can remain safe both on-line and off.