I was shocked by the access which law enforcement had to the email between General Petraeus and Paula Broadwell. I wondered how safe is anyone’s email… Are the messages we keep in our password-protected Yahoo and Gmail accounts private? Without a warrant, the government can’t search through our letters or diaries. Why should email be different?
I discovered that under the Electronic Communications Privacy Act (“ECPA”), email that is over 180 days old can be obtained by the government from a third party server, and searched, without a warrant and probable cause, the traditional bastions against overaggressive law enforcement. ECPA is out of date. It was written back when we stored email on our personal computers, and any email that was still not downloaded from the third-party server after 180 days could be assumed to be abandoned. Now, with cloud computing, we keep troves of email, photos, and personal information on remote servers which we access on-line. ECPA needs to be revised to accommodate to the reality that our personal libraries are in cyberspace.
A bill proposed by Senator Leahy and approved unanimously by the Senate Judiciary Committee is a good start. It would require police officers and other government agents to obtain a warrant from a judge on the basis of probable cause before snooping through anyone’s email. It will be debated by Congress after the holidays. I’ll follow it and keep you posted.