Can the Law Catch Up with Technology?

November 27, 2012 by

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In April of this year I had coffee with a neighbor I was interviewing for an article in the Dilworth Quarterly, a neighborhood newsletter for which I contribute occasional feature pieces. Like most of my coffee dates with interview subjects, we swapped stories, found some common ground, and fig

ured out a way to bring a Dilworth aspect to the piece, which was a little challenging since the article’s focus was my neighbor’s highly touted and recently published biography of General David Petraeus. Yes, it was coffee with Paula Broadwell, and needless to say, since my interview and article profiling her in the Dilworth Quarterly, I have taken particularly keen interest in the unfolding national security drama involving her and the General. And the truth is, my interest is tinged with a bit of fear at just how easy it is for the government to dig into private email accounts, track down so-called “anonymous” emails, and just generally sniff around the inner workings of personal computers – all without a search warrant.

Why the fear? Our privacy as it relates to electronic communications, like email and instant messages, is governed by a 1986 law called the Electronic Communications Privacy Act (“ECPA”). Seems a bit dated, doesn’t it, given the speed at which technology and our use of technology grows? And perhaps because it was drafted at the virtual birth of the internet age, the ECPA provides little protection for personal identifying information, like an IP address. All the FBI has to do is get a subpoena to your service provider and bam! They get the IP info. Once the FBI has that identifying information, it can then search email accounts associated with that IP address.

Now, yes, the ECPA contains some protections for your emails, and some federal courts have found that the Fourth Amendment requires a warrant before searching emails, but the government takes the position that the warrant requirement applies only to unopened email that are stored for less than 180 days. Opened emails left on the server for any duration of time are fair game, according to the Feds. And that is how investigators got a look at the draft emails Petraeus and Broadwell saved in a “draft” folder so the other could read them – opened emails left on a server. All the FBI needed was a subpoena, not a search warrant. Scary? If you want to rattle your nerves a bit more, check out this primer on email privacy from the Electronic Frontier Foundation.

Frighteningly, the minimal protections we now have are likely to be further eroded. This week the U.S. Senate is scheduled to vote on a bill that increases government access to email, cellphone data and other digital files. What is particularly concerning about this vote is that the original bill put forth by Senator Patrick Leahy contemplated increased protections such as the requirement that police obtain a search warrant backed by probable cause before they could read the contents of email or other communications. After the original draft of the bill was introduced, however, law enforcement agencies (including the National District Attorneys’ Association) began a hard drive to derail the bill. The result of the aggressive lobbying? The new rewrite rips away proposed protections and instead allows more than 22 government agencies access to email, Google Docs files, Facebook wall posts and Twitter direct messages simply by serving a subpoena to providers.

Here’s my takeaway on this latest potential trouncing of privacy: assume that the government can read anything you write on your computer anytime it wishes. And here’s a simple rule to guide you: if you really don’t want it read by the government, don’t write it down.