FBI may not need warrants to search e-mailsNewly released government documents show that the FBI and Justice Department believe they don't need a search warrant to review Americans' e-mails, Facebook chats, or Twitter direct messages. CNET's Kara Tsuboi and Declan McCullagh have the Inside Scoop.
-Hey, everyone. Welcome to the Inside Scoop. I'm CNET's Kara Tsuboi, joined by chief political correspondent, Declan McCullagh. Thanks for joining us, Declan. And today, we're discussing the whole idea that the Department of Justice and other government agencies, some may and some may not need warrants to access some of our personal information online-- e-mails, Facebook post, photos. Tell us a little bit more about this. -Right. We're talking about stored data, a lot of cloud data. And it's kind of weird, though, that you now have the IRS hang last month. Yeah, we're going to require warrants for e-mail, and now they're actually more privacy protective than the FBI and DOJ, the Justice Department, that is, who say, well, warrants kind of optional depending on the circumstances. -Why are there such inconsistencies between these government agencies, and who does that fall on to to make consistent? The Obama administration? -Right. I mean, the ball kinds of stops somewhere, with example, the White House. And so far, they've been just kinda hands off decisions. This is not something that they're really focused on. And so, the individual agencies set their own policies, which is just weird. I mean, in the end, the ball probably stops in Congress. And it's in-- within Congress' power to set rules for not just the FBI and DOJ, and IRS, but also for state and local law enforcement. And there are bills pending in Congress. Some have already been approved by committees, but they haven't actually made a way to a floor vote yet. And the bills would say that right now, if the police want to search your file cabinet at home, they have to get a search warrant. -Sure. -This has been the case for hundreds of years when [unk] was common law. -And everyone understands that, too. You know, you want my document? You need a warrant. -Yeah, quite right. And there's a lot of good reasons for it. It's-- in fact, the police probably, at some level, like this because they can demonstrate that they're actually following the rules and increases trust in them. But what they-- the problem is that, thanks to this law that was enacted in 1986, back during the days of black-and-white Macintosh Plus computers and dial-up modems, a search warrant is not required for all e-mail stored in the cloud. -Uh-huh. -And so, Congress can change this law. The courts are doing their own thing in parallel, but until the-- until the Supreme Court or Congress fix these things, we're left with this sort of legal [unk]. So, uncertainty and different agencies doing their own thing. -That's amazing that a lot that almost 30 years old is kinda dictating modern technology these days. But, so it is. What do you think the implications are of the inconsistencies here on tech companies? You know, like Google out there, like Apple, Facebook. The big guys. -Right. And almost all of those large companies, it's-- Apple, and Twitter, and Google, and so on, and even AT&T, have signed on to a coalition that's asking Congress to change the law. And it's good in a way because they're protecting privacy, but it's also self-serving. They want to say to Americans out there, that is their customers, you can move to the cloud. You-- it's just as safe as if the files were stored in your laptop at home. And so, there's-- and until that happens, the companies are worried. And until the law has changed, one way or another, through the courts and through Congress, people are gonna be not quite as interested in taking [unk] of some of these cloud services-- e-mail, documents, photos. All that stuff. -Final question. I guess, back to the consumer, if you have anything to hide, what should you do to protect yourself? -Well, right now, the answer is encrypt it. Use strong encryption and store it locally. Don't put it in the cloud. At least, if it's stored locally, if someone breaks down your door with a search warrant, you'll know about it. -Thank you so much. Chief political correspondent Declan McCullagh. I'm Kara Tsuboi. Thanks for watching the Inside Scoop.