The Foreign Intelligence Surveillance Court or FISA Court has affirmed that the Feds do not need a warrant to search your email. Of course, if that email is encrypted – not like GMail, but with real encryption – then while they may have the FISA court’s permission to look at it, they will have to figure out how do decrypt it first.
FISA Court Judge Thomas Hogan, in an opinion from last November that was recently declassified, said that Section 702 of the Patriot Act, including as amended by the FISA Amendments Act allows the government to keep any emails from American citizens that they hoover up as part of their mass data collection if that email is evidence of a crime. Evidence of a crime is a pretty low bar. After all, a lot of evidence would never convince a jury of anything.
This confirms a couple of things.
First, you should not say incriminating things in email. To me, this falls into the “DUH!” category.
And second, Section 702 of the FISA Amendments Act allows the government to hoover up a lot of email and keep it and share it if they think it could be evidence of a crime.
The implication of this is that if you expect your email to be private, that would require extraordinary steps on your part to make sure that it is.
In that same opinion, the criticized the NSA for not destroying old surveillance data in spite of rules that require them to do that.
“Perhaps”, Judge Hogan wrote, ” more disappointing that the NSA’s failure to purge this information for more than four years, was the Government’s failure to convey to the Court, explicitly during that time that the NSA was continuing to retain this information,”.
Let me translate that to English.
Ye Olde Judge is pissed that the NSA lied to him when they certified that they were complying with the rules for Section 702, when in fact, they were not compliant. I am gathering that the judge is saying that this was not an oopsie.
The NSA replied to the ruling by issuing a statement from ODNI Director James Clapper that said “prior representations could have been clearer”. – i.e., we lied and got caught at it. My bad. Sorry.
And some people are wondering why some citizens don’t trust the government. Seems pretty clear why some people don’t trust the government.
Information for this post came from SC Magazine.