SAN FRANCISCO — If the director of the CIA cannot keep the FBI from rummaging through his private Gmail account, what digital privacy protections do ordinary citizens have?
Precious few, privacy advocates say.
“When the government goes looking, it can find out pretty much everything about our lives,” said Chris Calabrese, legislative counsel for the American Civil Liberties Union.
That’s because the main law governing digital privacy – the Electronic Communications Privacy Act, or ECPA – was passed in 1986. At the time, Facebook founder Mark Zuckerberg was a toddler. The Web was in its infancy, and social networking had yet to be conceived.
No one predicted that, as the Web surged in popularity, people would begin storing their entire digital lives – emails, instant messages, Facebook status updates, photos, medical records, tax returns – on far-flung computer servers rather than on their home hard drives, where the information has broader legal protection.
Privacy watchdogs for years have warned that the antiquated federal statute – and conflicting interpretations of the statute from different courts – has not kept up with how people today use the Web, giving more legal rights to letters and documents stored in your filing cabinet than to emails and other electronic communications.
But attempts to reform federal law in Congress and in the courts have foundered.
“People worry about their password to protect their privacy. This illustrates how useless that is,” Pace Law School professor Ann Bartow said. “Unless there are substantive changes in the law, people just have to assume their email is accessible to the government without their permission and without their notification.”
Requests from the FBI and other law enforcement agencies to access private accounts regularly flood companies like Google Inc. The request to access the private Gmail account of Gen. David Petraeus was one of them.
In the aftermath of the Sept. 11, 2001, terrorist attacks, law enforcement officials say, such requests are routine and more necessary than ever to fight crime and terrorism.
But civil libertarians say the Petraeus scandal should serve as a wake-up call to ordinary citizens that anyone’s privacy can be invaded.
“In the pre-digital world, if the government wanted to find out what was going on in your bedroom, it needed to get a warrant to enter your bedroom. At least then you knew what was going on,” said Jim Dempsey, vice president for public policy for the Center for Democracy & Technology.