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FBI doesn’t have a warrant to review new emails linked to Clinton investigation

Oct 30, 20164 mins
Data and Information SecuritySecurity

FBI had no warrant to read emails; senators want answers by Halloween.

After seeing reports that the Justice Department is “furious” at FBI Director Comey for telling Congress about new emails potentially related to Hillary Clinton’s private email server and if she disclosed classified information, the Clinton campaign “made it personal” and accused Comey of a smear campaign. Comey, ironically the same FBI guy who recommended no criminal charges for Clinton, is now being treated like her enemy.

“It is pretty strange to put something like that out with such little information right before an election,” Clinton said during a rally at Daytona Beach on Saturday. “In fact, it’s not just strange; it’s unprecedented and deeply troubling.” She added, “So we’ve called on Directory Comey to explain everything right away, put it all out on the table.”

Senators want answers by Halloween

Right away might be Monday, Oct. 31; at least that is what Senators Patrick Leahy, Dianne Feinstein, Thomas Carper and Benjamin Cardin demanded on Saturday in a letter (pdf) to Attorney General Loretta Lynch and Comey. Comey’s “vaguely worded” and “troubling” letter, “breaks the longstanding tradition of Department of Justice and the FBI of exercising extreme caution in the days leading up to an election, so as not to unfairly influence the results.”

Below is the full letter about potential election tampering:

The senators said Comey’s letter, that the DOJ warned him about, has been “misunderstood.” The senators asked for “more detailed information about the investigative steps that are being taken, the number of emails involved, and what is being done to determine how many of the emails are duplicative of those already reviewed by the FBI.” The senators want answers “no later than Monday, October 31, 2016.”

FBI had no warrant to read emails

But that might be nearly impossible, considering that the FBI didn’t have a warrant “to read any of the newly discovered Abedin emails.” According to an exclusive report on Yahoo by Michael Isikoff, the FBI and DOJ were reportedly still in talks “as of Saturday night” about obtaining a warrant; therefore the FBI “was still in the dark about whether they include any classified material that the bureau has not already seen.”

Unnamed officials claimed that when Comey wrote the letter about the emails which “appear to be pertinent” to Clinton’s use of her private email server, “he had no idea what was in the content of the emails.”

A different unnamed law enforcement official admitted, “We do not have a warrant.”

Comey’s internal memo explaining his actions to FBI

Yet it is not only unnamed sources claiming the FBI did not have a warrant, since Comey sent an internal memo trying to explain his actions to all FBI agents on Friday.

The portion in which Comey said, “given that we don’t know the significance of this newly discovered collection of emails,” allegedly “strongly hinted that investigators did not yet have legal authority establishing ‘probable cause’ to review the content of Abedin’s emails on Weiner’s electronic devices,” Yahoo reported.

Comey’s letter to Congress has subjected the FBI director to withering criticism. Top Justice Department officials were described by a government source as “apoplectic” over the letter. Senior officials “strongly discouraged” Comey from sending it, telling FBI officials last week it would violate longstanding department policy against taking actions in the days before an election that might influence the outcome, a U.S official familiar with the matter told Yahoo News. “He was acting independently of the guidance given to him,” said the U.S. official.

Comey’s decision to send a letter and notify Congress sounds like a CYOA move, since yet another unnamed senior official claimed, “Comey feared that if he chose to move forward and seek access to the emails and didn’t immediately alert Congress, the FBI’s efforts would leak to the media and the director would be accused of concealing information.” The letter to Congress “was the least bad choice.”

So even if DOJ and the FBI came up with “probable cause” for a warrant, CBS News said FBI investigators will look “through emails, fragments of emails and attachments to determine what’s pertinent. They will try to build an inventory of emails in the process as they search for emails containing classified information.”

It is highly unlikely the FBI can go through “thousands of Abedin’s emails” discovered on Weiner’s laptop, decide how many are duplicates to previously investigated correspondence, and deliver answers to the senators’ questions by tomorrow.

ms smith

Ms. Smith (not her real name) is a freelance writer and programmer with a special and somewhat personal interest in IT privacy and security issues. She focuses on the unique challenges of maintaining privacy and security, both for individuals and enterprises. She has worked as a journalist and has also penned many technical papers and guides covering various technologies. Smith is herself a self-described privacy and security freak.