- The Washington Times - Wednesday, December 19, 2012

The sudden resignation of former CIA Director Gen. David H. Petraeus over an extramarital affair turned heads for many reasons — not least of which was the way a few Gmail messages brought down a man who handled sensitive information for a living.

Now, city lawmakers in the nation’s capital will consider a bill that requires local law enforcement to obtain a warrant before seizing private emails, citing concerns that investigators are able to peek at messages with a stroke of their own pens.

D.C. Council member David A. Catania, at-large independent, said the council should use its authority to replicate an effort on Capitol Hill that takes on an increasingly important question in courts and legislatures across the United States — when do law enforcement officials, as stewards of the public’s defense, have the right to access emails or other digital records widely considered to be private?

Federal law does not require the government to obtain a warrant before investigators seek emails that are more than six months old, but measures promoted by Sen. Patrick J. Leahy, Vermont Democrat, would eliminate what his office calls the “outdated 180-day rule” that allows for different legal standards for accessing email depending upon the age of the messages. The Senate Judiciary Committee last month passed the reforms to the Electronic Communications Privacy Act of 1986, but the measure faces an uncertain fate in the full Senate and the House.

In the meantime, Mr. Catania said nothing is stopping local lawmakers from making sure their constituents’ private emails are protected against undue searches and seizures.

“While emails may not be physical papers when sent, they are nonetheless private communications that deserve and require the protection of the Fourth Amendment,” Mr. Catania said, adding that as it stands, investigators often need nothing more than an administrative subpoena to obtain emails from an electronic communications provider.

The technology itself is changing rapidly. When the 180-day provision concerning emails was enacted, emails were often kept for brief amounts of time on in-house servers instead of in the “cloud” of outside Web mail servers. The blurring of Fourth Amendment protections when using third-party servers has “put the brakes” on some companies using the cloud, said Ross Schulman, public policy and regulatory counsel for the Computer and Communications Industry Association.

The CCIA is a proponent of warrant requirements, as a constitutional right and for business reasons, but is frustrated by a lack of official reporting when it comes to the governmental request for electronic records. Asked how frequently law enforcement requests private data overall, he said, “Nobody knows.”

Google, in its routine “transparency report,” said it received 7,969 requests to hand over user data from the U.S. government in the first six months of this year, a 22 percent increase from the 6,321 requests it received in the previous six-month period.

Reports of government wire-tapping in the war on terrorism and through legislation such as the Patriot Act also injected life into the debate over privacy in the digital age. More recently, the investigation into Mr. Petraeus’ relationship with Paula Broadwell — and her resulting communications with a Tampa, Fla.-area socialite —cast a bright light on federal investigators’ use of private emails.

The courts have weighed in, too. In the last year, the U.S. Supreme Court ruled that a decision by law enforcement in the District to track a suspect with a GPS device on his car was considered search under the Fourth Amendment, while Massachusetts’ highest court said this month that police did not need a warrant to access call logs on an arrested person’s cellphone.

Mr. Catania said his bill, which would affect local law enforcement in the District, sprung from his ongoing interest in privacy rights as reports of government-led surveillance continue to surface.

“That makes me nervous,” he said in an interview Wednesday.

Measures such as Mr. Leahy’s have faced opposition from the law enforcement community. The U.S. attorney’s office for the District and D.C. Police Chief Cathy L. Lanier wrote letters to council Chairman Phil Mendelson, a Democrat, urging him not to rush Mr. Catania’s proposal to passage.

“As this Act would fundamentally alter the way that law enforcement investigates crimes ranging from child abduction to drug trafficking to gang violence, we believe that the Council should not move forward without significant additional consideration,” U.S. Attorney Ronald C. Machen Jr. said in his letter.

Chief Lanier ensured Mr. Mendelson that the Metropolitan Police Department “does not have unlimited access to electronic communication.”

“Working with prosecutors, we seek warrants or subpoenas for electronic records,” she said. “Not only is this our normal practice, but service providers also have a vested interest in preserving the privacy of their customers to the greatest extent allowable.”

The officials also had serious concerns about other parameters of the proposal, including the time frame in which a “subscriber” — the person whose information is being sought — would be notified of the request from law enforcement to the third party that controls the server containing the emails.

On the other side of the debate, the D.C. chapter of the American Civil Liberties Union and the Computer and Communications Industry Association sent letters of support to Mr. Catania, citing their concerns about privacy and unbridled government access in the digital age.

On Wednesday, he said the council should be able to forge a bill despite opposition from law enforcement.

“Make no mistake —law enforcement wants to make it easier to do their job, not harder,” he said. “Our job is to counterbalance that to protect the civil liberties of our citizens.”

Other city lawmakers said they were intrigued by Mr. Catania’s proposal, but they want to host a healthy debate between law enforcement and those who tout individuals’ privacy rights.

Council member Marion Barry, Ward 8 Democrat and a former mayor who was famously arrested in an FBI sting on crack cocaine charges in 1990, called on the council to strike the right balance when it comes to the government’s surveillance of citizens.

“These things can be done,” he said of the tactics. “Nobody knows they’re being done — I’m certainly a witness to that.”

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