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The American Civil Liberties Union has obtained documents revealing that the FBI and IRS may be reading emails and other electronic communications of U.S. citizens without obtaining a warrant. This comes just as reports have emerged that the Obama administration is considering approving an overhaul of government surveillance of the Internet. The New York Times reported the new rules would make it easier to wiretap users of web services such as instant messaging. “The FBI wants to be able to intercept every kind of possible communication,” says attorney Ben Wizner, director of the ACLU’s Speech, Privacy, and Technology Project. “The FBI basically wants to require all of these companies to rewrite their code in order to enable more government surveillance.   And in order to accomplish that, they would make the whole Internet less secure.”

JUAN GONZALEZ: We turn now to the issue of government surveillance. The American Civil Liberties Union recently obtained documents revealing that the FBI and the IRS may be reading emails and other electronic communications of U.S. citizens without obtaining a warrant.

AMY GOODMAN: This comes as reports have emerged that the Obama administration is considering approving an overhaul of government surveillance of the Internet.
The New York Times reported the new rules would make it easier to wiretap users of web services such as instant messaging.

Well, to talk more about this, we’re joined by Ben Wizner, an attorney at the ACLU and director of the Speech, Privacy, and Technology Project.

We welcome you back to
Democracy Now! What did you find out?

BEN WIZNER: I suppose we didn’t find out anything that was all that shocking. A 1986 law called the Electronic Communications Privacy Act actually allows law enforcement to read emails that are stored for more than 180 days without a warrant. Now, of course, that law was enacted before there was a World Wide Web, before there was cloud storage of email, when in order to store an email that long you had to download it to your own computer. So it’s an incredibly out-of-date law.

Now in 2010, a federal court said that it was unconstitutional for the FBI to obtain and read those emails without a warrant, which strikes us as absolutely correct. So we wanted to know: Is the FBI actually following this federal court decision? It’s a federal court decision that covers four states, but it seems to state the law absolutely correctly. And so we filed FOIA requests with lots of government agencies. And what we learned is that some seem to be following this decision, and others don’t. The FBI gave us a 2012 operations guideline that doesn’t even mention that case and that says unequivocally that it can obtain stored email communications without a warrant, simply with a subpoena.

JUAN GONZALEZ: The-but the IRS.

BEN WIZNER: Yeah.

JUAN GONZALEZ: Why are they being able to look through people’s emails without a warrant?

BEN WIZNER: Well, they ought to be able to look through emails with a warrant. I mean, the IRS conducts criminal investigations, and perhaps they should conduct more criminal investigations, you know, given the way some people avoid tax laws in this country. But there’s no reason why they should not be able to obtain a probable cause warrant from a judge. You know, it’s ironic that we’ve been screaming about this for years and years, that there’s a big movement to reform this law, but only when we released documents about the IRS did any Republicans on Capitol Hill take any notice of this at all.

So I think the prospects for reform, for overhauling that out-of-date law, and for providing real constitutional protection for emails-and there’s no reason why your email should have different constitutional protections than a letter that you write. People expect, when they send a private email to someone else, that it is private, that it shouldn’t be treated just as a kind of business record that the government can obtain without good reason.

AMY GOODMAN: Do you find, after the Boston Marathon bombing, that there is increased willingness to accept all kinds of surveillance? I mean, the use of face-recognition technology, the whole country then sees that the suspects are then arrested. How are you dealing with this?

BEN WIZNER: You know, it’s very interesting, because I think that the Boston situation confirmed largely what we know about that kind of video surveillance. It doesn’t prevent or deter serious attacks. It didn’t in Boston, it didn’t in London, it didn’t in Madrid, and it didn’t in Times Square. It can be useful in helping to figure out after the fact who did it, which is why we don’t oppose camera systems at high-profile targets or events.

What we don’t want is cameras to be so pervasive that they’re pointed into our backyards or into bedroom windows, and for records to be stored primarily of innocent people going about their daily business. It’s not just a Big Brother problem that we’ll have this permanent database. It’s a “little brother” problem. We saw, you know, the NYPD flying over a rooftop and videotaping a couple in an amorous moment, and somehow that was leaked to a news station, so we know about it. I imagine that kind of thing happens all the time.

But, yes, I mean, I do-I think that there is this belief that greater surveillance leads to greater security. And I think that at times the opposite is true. Trying to prevent terrorism is trying to find a needle in a haystack. There’s just not a lot of terrorists. And the worst way to do that is to make the haystack so large that the needle can’t be found. And the more information that gets swept up, stored, the harder it is for law enforcement, with their limited resources, to actually figure out what’s going on.