How protected is your online privacy?  How safe are your emails that are stored on online email servers such as Gmail or Yahoo?

No doubt you’ve heard about General Petraeus by now, the former director of the CIA who resigned in disgrace after it was discovered he was having an affair with his biographer. The concerning thing about this case is the way the affair was discovered. The FBI was conducting an unrelated investigation, and accessed Petraeus’s email without a search warrant and without notification. When they found incriminating information about his affair, they followed up on that information. The FBI could do this thanks to a loophole in the Electronic Communications Privacy Act (the ECPA).

The Electronic Communications Privacy Act was passed in 1986, a time when most Americans were still skeptical that this personal computer thing would catch on, and email was still a novelty, rather than a primary means of communication. Those who did have PCs and used email stored the emails on their hard drives, and the law was enacted partly to protect those hard drives from being searched without probable cause. The problem is, today, no one stores emails on their hard drives. It’s all stored in the cloud, on the servers of companies like Yahoo and Gmail.

ECPA loophole says that messages stored online for more than 180 days count as abandoned, and no search warrant is required to search them. Instead, the government agencies, such as the FBI and the FTC, subpoena the information from the companies themselves, and the user is often unaware their private information has been searched.

Luckily, Senator Patrick Leahy from Vermont has proposed an amendment to the ECPA that has now passed the Senate Judiciary Committee and is waiting to be voted on by the Senate sometime this year. The amendment closes up the loophole, and updates protections to reflect the current nature of digital storage. It would require government agencies to obtain a search warrant before searching all digital files, not just email, the same as if those files were locked in a filing cabinet in your home. Agencies would be required to notify the user that their files have been searched, though there is a provision for that notification to be delayed for up to a year.

This is extremely good news for online privacy advocates, and we here at Net Nanny agree. We hope that this amendment passes, and that Americans’ online privacy will be further protected.

What are your thoughts?

I work for Net Nanny. The opinions expressed here are my own.