Nov 17 2012
Once you’ve opened an email or your Facebook account, you’ve provided your personal information to a third party. The government can then ask that third party—Google, Yahoo, Facebook, Friendster, or whatever—for your information, and they don’t necessarily need a warrant. The Constitution protects you from unreasonable search and seizure by the government. It doesn’t stop third parties from sharing personal information you willingly give them. Likewise, there’s no warrant needed to acquire the IP addresses—unique identifiers that can usually be traced to specific geographical locations—of people accessing those email accounts. According to the Wall Street Journal, that’s exactly how the FBI figured out Broadwell was behind the allegedly harassing emails that sparked the investigation that uncovered the Petraeus affair.
That’s not all. All your emails that are more than six months old are legally treated as online “storage” and accessible with a court order or a subpoena to the online service provider. The providers can say no, but usually they don’t. By contrast, listening in on someone’s phone calls requires a warrant based on probable cause, along with a showing that the FBI has done everything else in their power to acquire the information they’re seeking. Now that many people communicate more frequently via email and instant messages than via phone conversations, the difference in standards doesn’t make much sense. Senator Patrick Leahy (D-Vt.) has proposed a bill that would subject requests for online communications to the same high standards required for tapping phones, but Congress doesn’t seem all that interested in passing it yet.
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