2-Minute Law School: Email Privacy

Hi. Professor Albert here for this week’s edition of THELAW.TV’s 2-Minute Law School. This week, we’re going to look at your emails and just how private … or not private … they really are.

In recent news, four-star United States Army General and former Central Intelligence Agency director David Petraeus is at the center of a scandal involving an extra-marital affair. After the news of the affair became public, Petraeus resigned from his position at the C.I.A. The scandal was discovered through an F.B.I. investigation, which began when Tampa socialite Jill Kelley contacted the F.B.I. after receiving anonymous threatening emails. The F.B.I. traced the emails to Petraeus’s lover, who appeared to be exchanging intimate messages with an email account belonging to Petraeus. That finding began an investigation into whether the account had been hacked into or was someone posing as Petraeus.

Congress enacted The Electronic Communications Privacy Act of 1986 to extend government restrictions on wire taps from telephone calls to include transmissions of electronic data by computer. Specifically, the E.C.P.A. was primarily designed to prevent unauthorized government access to private electronic communications.

But, under the E.C.P.A., it’s relatively easy for a government agency to demand that service providers hand over personal data that’s been stored on their servers. For instance, email stored on a third party’s server for more than one hundred eighty days is considered by the law to be abandoned, and all that’s required to obtain the content of the emails by a law enforcement agency is a written statement certifying that the information is relevant to an investigation, with absolutely no judicial review required whatsoever. The agency can get that statement from a prosecutor, without ever getting a judge involved, as is typically required for warrants. This law that was meant to protect you could be used against you.

While the U.S. Constitution provides the right to speak freely, the E.C.P.A. does not disallow such rights. Instead, the E.C.P.A. takes on the role of George Orwell’s fictional Big Brother in that anything that spoken or written, especially in an electronic forum, is accessible by a government agency. So what are your rights? Well, you may not have any. Unless the E.C.P.A. is amended, it seems as though any communication you may have, especially if it’s by email or in some other form online, or in the so-called cloud, is actually not as private as you may think. Privacy advocates have been pushing for changes for years. Maybe it took an apparent invasion into the privacy of a spy agency to get those changes.

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