ATLANTA — Sex, spies and Internet protocols. When a labyrinthlike investigation of supposedly anonymous emails can lead to the downfall of the country’s top intelligence official, more than a few Americans have to wonder: Is my inbox safe? Sure, the typical citizen isn’t engaged in salacious acts with a high-ranking intelligence officer. Nor is the average Joe — or Jane — engaged in criminal activity that might reasonably trigger a government probe.
But if there’s anything to be learned from the scandal that ensnared retired Gen. David Petraeus, experts say, it’s that one needn’t be “all in” a mess with a top government official for law enforcement to be all in your email.
“Hopefully, if there’s an upside to this story, it’s that people realize just how much power the government has to read our emails,” said Stephen Vladeck, an American University law professor. “This has been a dirty little secret for national security law for the better part of four to five years now. The government has a lot of power.”
The core problem, Vladeck and other experts say, is that privacy laws are woefully out of touch with modern electronic communication, which doesn’t have the same constitutional protections that apply to physical mail or telecommunications.
A short primer: If you have a written letter the police or a prosecutor want, the Fourth Amendment says they have to persuade a judge that there’s probable cause to suspect you of criminal activity. And they have to spell out in the search warrant what it is they’re looking for.
But in most places, including Georgia, a federal prosecutor can issue a subpoena and obtain your emails without a judge’s approval. The only exception is unopened emails that are less than 180 days old, which do require a warrant. Any email that’s been opened or is more than 180 days old is obtainable through a subpoena.
Internet service providers such as Google or Yahoo can fight such demands, though often unsuccessfully.
And regardless of whether a subpoena or a warrant is used, law enforcement officials can request that you be kept in the dark about the seizure for up to 90 days. So you won’t even know that your private communications are no longer private.