Email Privacy Issues Brought to Light by CIA Director Scandal
Throughout California and the rest of the United States, people who send emails may assume they have some right to privacy. Recent events, however, show that the barriers are low for law enforcement to access email and that email privacy is more limited than many would believe, explains a California personal injury attorney.
Last November, David H. Petraeus resigned from his post as the director of the Central Intelligence Agency (C.I.A.). Mr. Petraeus is a four-star general with a long and distinguished career. He resigned after an F.B.I. investigation revealed that he had been involved in an extramarital affair with the woman who had written his biography, Paula Broadwell.
Petraeus’ affair came to light when a Tampa woman named Jill Kelley expressed her concerns about some anonymous emails she had received last June. Kelley was a friend of Petraeus’ and had received harassing emails from Broadwell, who believed that the relationship between Kelley and Petraeus was inappropriate. After following up on the emails, the F.B.I. gained access to Paula Broadwell’s Gmail account and found emails from Mr. Petraeus. As the investigation unfolded, potentially inappropriate emails were also discovered that had been exchanged by Jill Kelley and General John Allen, the top U.S. commander in Afghanistan.
The Email Privacy Concerns
The 1986 Electronic Communications Privacy Act sets the current law on email privacy. Under this act, federal authorities can gain access to emails that are more than six months old if there is a subpoena approved by a federal prosecutor. The subpoena does not have to be approved by a judge, although a judge does have to sign off on a warrant to access to emails that are less than six months old. Because many people store their emails in their accounts indefinitely, the fact that it is so easy for law enforcement to gain access to older emails is a major concern.
Also of concern is the fact that law enforcement can easily obtain a great deal of information about account users from their email providers and ISP providers, including who an email account belongs to and when and where emails were sent. Email providers can turn this information over with only a judicial order or subpoena from a federal prosecutor. This is not a rare event either. According to WDBJ7.com, Gmail received 12,300 requests from the U.S. government in 2011 to obtain data about their users. Google complied with more than 90 percent of those requests.
The New York Times also touched upon the concerns surrounding email privacy that were raised by the Petraeus case, specifically that cyber investigations can become open-ended because there is so much information available. Law enforcement could obtain access to a huge amount of private information stored online and they might only need a subpoena from a federal prosecutor to start their search.
Changes to the Law
Some lawmakers are trying to put up more barriers to limit law enforcement access and better protect individual privacy. NPR reported that the Senate Judiciary Committee has approved legislation that will require police to get a search warrant from a judge prior to reviewing emails or other electronic communication. The full senate, however, is not expected to vote on the legislation until some time in early 2013.
Even if the new law goes into effect, a subpoena signed by a federal prosecutor continues to be sufficient for law enforcement to obtain routine data from third party Internet providers. This data includes information that identifies senders of emails as well as locations where emails are sent.
Further, while probable cause will be required under the new law in order for law enforcement to obtain a warrant to read the contents of people’s emails, a judicial order can be granted to view the “to” and “from” addresses of an email with only a reasonable suspicion that a crime has been committed. This is a lower standard than the probable cause standard required for obtaining a judicial warrant.
This means that even if this new bill passes, privacy protections for email users in California and throughout the United States will still remain somewhat limited.
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