Advance legal columnist: The Petraeus scandal raises key privacy ...

The explosive scandal involving former CIA Director David Petraeus has intensified concerns about privacy in the digital age.

The former four-star general's affair with Paula Broadwell, his biographer, came to light after the FBI analyzed harassing e-mails she sent to a Florida woman using an anonymous account.

While Broadwell may have thought she was being clever, the technique she employed to shield her identity was doomed to fail by the very nature of e-mail communications. Since e-mails are laden with location information known as metadata, tracing their origins is really quite simple, and identifying their senders only incrementally less so.

Similarly, popular search engines such as Google record and retain users' Internet Protocol addresses.

Coupled with their aggressive use of small text files known as cookies, they track on-line activity so comprehensively that a detailed profile of every user emerges. A variety of devices exists for the disclosure of this information to both government and private parties.

Last week, Google announced that the federal government had made 7,969 requests for such data on 16,281 accounts during the first six months of this year. This was a dramatic increase over the same period last year, when the search engine giant received 5,950 requests concerning 11,057 accounts. Significantly, Google reported that it had voluntarily complied with 90 percent of the requests made this year. Even where such requests are denied, however, compliance may be compelled by legal initiatives such as subpoenas, warrants, and court orders.

The primary statute governing the disclosure of Internet data is the Electronic Communications Privacy Act.

It was signed into law in 1986, before most people had even heard of the Internet's development. Privacy advocates such as the American Civil Liberties Union complain with justification that it accords little real protection to those who access the World Wide Web.

Hence, they have been calling on Congress to update the law to require, among other things, that the government obtain a search warrant before accessing electronic records such as e-mails, search-engine histories, and cell-phone locations.

In an April 8, 2011, blog entry, the ACLU argues that such a requirement wouldn't entail asking government officials to do any more than "they have always had to do for other sensitive information."

But that's not really true, however much the ACLU's appeal to tradition may resonate with people concerned about their privacy.

FALSE EXPECTATIONS
?
?

The Fourth Amendment's search and seizure provisions are predicated on an individual's reasonable expectation of privacy. But when a person elects to communicate with another by e-mail, he uses a third-party server not only to transmit the message but to store it.

Similarly, search-engine usage involves telling that entity what information is requested and using its servers to obtain it. In each process, these outside entities are thereby given the IP address of the user and the precise language he's employed.

There is nothing traditional in any of this. Nor does it lend itself to a reasonable expectation of privacy as traditionally understood.

Which is why the ACLU is being too cavalier in claiming as axiomatic the protection of the Fourth Amendment's warrant clause to a person's activity in cyberspace.

Moreover, imposing a warrant requirement on government's efforts to access a person's Internet data would significantly and unnecessarily burden its efforts to fight crime, including terrorism, a point emphasized by the U.S. Department of Justice in testimony before Congress in April of last year.

The tension between privacy advocates and law enforcement, with digital technology's rich harvest of information as the prize, is evident in recent court decisions involving cell-phone location capability.

In August, the U.S. Court of Appeals for the 6th Circuit upheld the interstate warrantless surveillance of a drug suspect by law-enforcement authorities continuously pinging his pay-as-you-go cell phones.

Writing for the majority, Judge John M. Rogers said, "When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them."

Since a contrary conclusion was reached by the U.S. Court of Appeals for the 3rd Circuit two years ago, the issue is destined to be resolved by the Supreme Court.

The Obama Administration sided with law enforcement in both cases, arguing that cell-phone users have no reasonable expectation of privacy when it comes to cell phone records since they are in the possession of the phone companies.

From a technological perspective, there are very few paths to privacy in cyberspace and all but the most highly sophisticated users have no idea how to begin navigating any of them.

Nor does current law provide meaningful recourse to those concerned about securing privacy in a medium inherently at odds with it.

Whether Congress and the courts will change that remains to be seen. In the meantime ? and probably regardless ? when it comes to cyberspace, let all those who enter beware.
?
?
[Daniel Leddy's column appears each Tuesday on the Advance Editorial Page. His e-mail address is JudgeLeddy@si.rr.com.]

Source: http://www.silive.com/opinion/danielleddy/index.ssf/2012/11/advance_legal_columnist_the_pe.html

buffalo chicken dip soul train nevada caucus ufc 143 what time does the super bowl start super bowl 2012 josephine baker