Former CIA Director David Petraeus from his position after the FBI looked through Petraeus’ private Gmail account and discovered that he was having an extramarital affair. These events have brought to light the fragile state of individual privacy on the Internet, particularly in relation to individual email accounts.
According to the Electronic Communications Privacy Act of 1986 (“ECPA”), which is current and applicable cyber law, the FBI has the authority to look through any email account simply by accessing the account through providers such as Yahoo or Gmail. Under the ECPA, law enforcement agencies do not need a search warrant to look through such accounts if the message is more than 180 days old.
In addition, the Foreign Intelligence Surveillance Act of 1978 (“FISA”), under Title 50, sections 1801 et seq. of the United States Code, allows the government to monitor communications between foreign parties, without a search warrant. A 2008 amendment to FISA further allows the government to monitor communications between American parties if the government does not know of the parties’ exact locations or identities. A group of attorneys raised a constitutional challenge to this amendment, and the matter is now before the United States Supreme Court. The justices have focused on whether the amendment offers the government an inappropriate range of power, or whether the amendment simply expands the government’s resources to protect America.
In response to public discontent, the Senate Judiciary Committee has considered an update to ECPA that would require police to obtain a search warrant before searching private emails. As technology advancements give law enforcement agencies increased avenues to access private information, the public calls upon legislatures to “catch up.”
There are certain legal remedies in place to protect individual privacy on the Internet. For example, the Stored Communications Act (“SCA”), which Congress also enacted in 1986, allows a party to sue in civil court when there is unauthorized access of personal email. However, the SCA’s main focus is the privacy of emails upon delivery, which does not necessarily protect the privacy of stored emails after delivery.
However, the government is also taking action to protect privacy on the Internet. The Federal Trade Commission (“FTC”) initiated a lawsuit against Google for violating a 2011 privacy settlement. Google paid $22.5 million for violating the settlement by allowing cookies to track user information on the Safari web browser on Apple products. According to the FTC, this is the largest settlement they have ever obtained for their efforts to protect individual privacy. However, skeptics argue that this will only be a “slap on the wrist” for Google and actual Internet privacy will call for Do Not Track Legislation.
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