Petraeus affair: A lesson on e-mail privacy

I have no interest in David Petraeus’ sex life, as long as it’s not putting our country in jeopardy. I don’t care about Paula Broadwell’s “sculpted arms,” and I don’t want to hear any more ridiculous commentary on whether wearing a sleeveless top or “form-fitting” clothing is the mark of homewrecking seductresses everywhere. I’m not really worried about a shirtless F.B.I. agent, either.

I am interested in, and continue to be alarmed by, the government’s ability to use a statute drafted on a 1980s understanding of technology to rummage through personal e-mail accounts without obtaining a warrant or notifying the e-mail user.

“In the pre-digital world, if the government wanted to find out what was going on in your bedroom, it needed a warrant to get into your bedroom. At least then you knew what was going on,” Jim Dempsey of the Center for Democracy and Technology said, according to the Los Angeles Times.

Not so much anymore.

Today, the main law governing online privacy is the Electronic Communications Privacy Act, which was passed in 1986. Part of this law, the Stored Communications Act, requires that the government obtain a warrant before it can access e-mails in “electronic storage” for 180  days or less.

“Electronic storage” is defined as:

(A) any temporary, intermediate storage of wire or electronic communication incidental to the electronic transmission thereof; and

(B) any storage of such communication by an electronic communication service for purposes of back-up protection of such communication.

Under the statute, the government can access, through nothing more than a subpoena, e-mails that are not in “electronic storage” and e-mails that are in “electronic storage” for more than 180 days. The government does not even have to notify the e-mail user for a period of 90 days.

Interpretation of the proper meaning of “electronic storage” has been the subject of debate for years. In the context of the Petraeus scandal and other cases, the government has claimed  that e-mail “drafts” are not “electronic storage” within the meaning of the statute. Therefore, the government claims, it does not need to obtain a search warrant before snooping through citizens’ draft or “drop box” e-mail messages. Another disputed issue in federal courts had been whether opened e-mails 180 days old or less are included in”electronic storage.” In addition to complex interpretive arguments, many scholars have raised the practical argument that protection of only unopened e-mails 180 days old or less would effectively be no protection at all, since users check e-mail accounts with great frequency.

The constitutionality of the Stored Communications Act, if not on its face then as applied in most circumstances, is questionable at best. The Sixth Circuit Court of Appeals, in United States v. Warshak, decided that the SCA is unconstitutional to the extent that it permits the government to search e-mails warrantlessly. I think that it’s fair to say that most individuals have a subjective expectation of privacy in their personal e-mail accounts and that society is prepared to recognize this as reasonable. E-mail is fundamental to modern communication, and users’ expectation of privacy in e-mail is analogous to the expectation of privacy in telephone conversations and postal mail.  The fact that Internet Service Providers (ISPs) have the ability to transmit or a limited ability to access e-mail does not diminish that expectation of privacy. ISPs’ limited access to e-mail, like hotel clerks’ or landlords’ limited access to property,  probably does not authorize ISP consent to warrantless government searches.

The Petraeus affair is a lesson on e-mail privacy, and it should serve as a reminder that we need to reconsider a wildly outdated law.

Contact Denise Dolan, a Massachusetts lawyer, at (617) 336-7250 or send her an e-mail at dolan.denise@gmail.com.

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