Petraeus Affair Raises Concerns About E-mail Privacy

With all the coverage surrounding the recent fiasco involving General Petraeus, the extent of people’s personal electronic security has been given increased attention. After all, if the CIA Director isn’t able to keep his emails private, what hope is there for the rest of us? Many privacy experts agree the recent scandal has shown just how vulnerable most people are in terms of the transparency of their digital communications.

The first thing that many experts say you need to realize is that no matter what you’re trying to hide, if it’s in your e-mail inbox it is possible that someone will find out. If the thing you’re hiding involves criminal activity, the chance of the government finding it goes up exponentially given their power to search and subpoena information. This doesn’t change whether the information is contained on your hard drive or floating up in the cloud.

One thing that Petraeus discovered was that the government can easily connect you to an account by using the IP address of the computer you used to access the account. This is what proved that he and his mistress were using the otherwise anonymous account. E-mail providers like Google and Yahoo save this kind of information for 18 months, during which time it can easily be subpoenaed.

Something many people may not realize is that the Fourth Amendment requires the authorities to get a warrant from a judge to search only physical property. Rules governing e-mail searches, however, are far more lax. Under the 1986 Electronic Communications Privacy Act, a 1986 law that Congress enacted to protect your privacy in electronic communications, a warrant is not required for e-mails six months old or older. Even if e-mails are more recent, the federal government needs a search warrant only for “unopened” e-mail. Everything else, including identifying information such as the IP address used to access the account requires only a subpoena.

One complicating factor is a recent rejection of the government’s approach by the Ninth Circuit Court of Appeals. The district happens to encompass many of the technology companies that handle e-mail messages and the servers that contain the data. Given the decision by the Ninth Circuit, the Department of Justice’s Manual now includes a note reminding agents in the area to get a warrant before accessing such information.

Though many people might believe this kind of e-mail surveillance only happens in high profile cases, the reality is that law enforcement throws a large net when looking for incriminating information. Google reported that United States law enforcement agencies requested data for 16,281 accounts from January to June of this year, and it complied in 90 percent of cases. Online users need to realize that everything is logged and recorded somewhere. If you don’t want someone else to find it, don’t say it.

Read: “Trying to Keep Your E-Mails Secret When the C.I.A. Chief Couldn’t,” by, published at NYTimes.com.

TN Supreme Court to Review Case Involving Facebook Messages

By Jay Perry

             In a case that is emblematic of the potential problems with digital communication during jury trials, the Tennessee Supreme Court has granted review in State v. William Darelle Smith.  The case, which is an appeal from a conviction of First Degree Murder involves Facebook messages sent between a juror and the medical examiner during the trial. 

After the medical examiner had concluded her testimony, the juror sent a message stating that the juror recognized the witness and “thought you did a great job today on the witness stand”.  The message also stated the juror’s belief that “you really explained things so great!!”  The medical examiner responded that “I was thinking that was you” and recognizing the impropriety added “there is a risk of a mistrial if that gets out”. To the medical examiner’s credit, she notified the trial court of these communications.

Despite the trial court’s knowledge of this contact, it refused defense counsel’s request to question the juror further regarding the Facebook communications.  At the Court of Criminal Appeals, the appellate court rejected the defendant’s appeal finding the communication to be merely a “social communication” and no evidence that the juror was seeking extra or improper information about the case. 

It seems likely that the Supreme Court granted review in order to better outline how to control digital communication and information gathering during trials.  The most recent case law cited in the Court of Criminal Appeals decision is from 2000 and it seems that this issue deserves some new guidance to trial courts throughout the state.  Not only in terms of communication but now additional information is available to any juror with a simple Google search.  While there is only so much a trial court can do to control jurors and their access to information, it is important that such communications do not comprise the defendant’s right to a fair trial.   It seems appropriate that the trial court with knowledge of potentially inappropriate communications or other technology usage would at the least make further inquiries.

 

It will be interesting to see what happens with this case and whether the Court finds that what happened here mandates a new trial.  The Court of Criminal Appeals decision can be read here.