IN THE LATEST illustration of the Bush administration’s disregard for your privacy, the Justice Department is trying to convince a panel of federal judges that the FBI should be free to read your e-mail without obtaining a warrant.

It’s not all your e-mail -- only messages left on a Web-based system such as Hotmail or on your Internet service provider’s computers. A 1986 law forbids the interception and disclosure of e-mail and other online transmissions without a warrant. But there is an exception. If the messages are more than 180 days old, they can be obtained merely with a subpoena or a court order, which investigators can obtain more easily than a warrant.

Now the Justice Department is arguing, in a case before an appeals court in Ohio, that even new messages can be obtained without a warrant if their intended recipient has already read them. The Justice Department views an opened e-mail left on a service provider’s computer as more like a postcard left on a table than a sealed letter in a drawer. Which is to say, its owner has no reasonable expectation of privacy.

About a jillion e-mail users would beg to differ. The Internet is far more popular, and connections to it more persistent, than they were in 1986. Yahoo, Google and other Web-based services offer vast storage capacity to users, enticing them to treat their online inboxes as file cabinets. Part of the utility of these services is that they enable people to keep all their e-mail in one place that can be reached from any Internet-connected computer, not just the one in their home or office.


The change in technology not only makes the Justice Department’s position absurd, it undermines the law’s 180-day limit. When the law was drafted, e-mail was typically stored by Internet service providers only until a user dialed in and checked his or her account. It would then be sent to the subscriber’s computer and deleted from the provider’s servers. Lawmakers set the 180-day threshold to distinguish between wanted but unread mail and messages in an abandoned account. Now users store e-mail on the Web for years.

Given these changes, U.S. District Judge Susan Dlott was right last month to find that e-mails stored online cannot be read by investigators without a warrant. (The case involves a business owner accused of fraud.) The Justice Department’s view is inconsistent with the 4th Amendment, although it is in line with the administration’s tendency to trample privacy rights in pursuit of suspected criminals and terrorists.

The U.S. 6th Circuit Court of Appeals should rein in the feds and strike down the provisions of the law that are out of sync with the technological realities of the broadband era -- and the privacy expectations of Americans.