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Electronic privacy and federal investigations

Hard cases make bad law. This well known legal maxim suggests that making a decision based on the facts of specific cases can be hard to generalize into broader legal principles.

Sometimes, however, a specific case calls attention to the need for broader principles. That may well be true in the case of the investigation into the conduct of David Petraeus. Gen. Petraeus, the now-disgraced former CIA director and lauded general, was forced to resign because of an adulterous affair with a woman named Paula Broadwell, his biographer-turned-mistress.

But Petraeus's specific case raises the larger question. What rights do federal law enforcement agencies have to look into someone's e-mail and other private communications?

We know that federal investigators reviewed a voluminous amount of e-mail correspondence involving Petraeus. Indeed, the review was so extensive that some commentators have suggested that the real public scandal in the Petraeus case is not the adultery, but the way the government invaded his privacy.

It's true that a federal law currently on the books has been used widely by the FBI to obtain many private e-mails. The Electronic Communications Privacy Act of 1986 is the operative law. But unopened mail is still supposed to be highly protected. There is still a role for subpoenas.

Moreover, Fourth Amendment protections against unreasonable search and seizure are still in place. This means that wide-ranging attempts by federal prosecutors to obtain electronic communications may not be justified.

Law enforcement agencies in St. Louis and around the country often express concern about Internet crime, cyberattacks and other nefarious online activities. But that does not mean that the government can dispense with electronic privacy in investigating such activities.

Source: "Petraeus Scandal Raises Concerns About Email Privacy," St. Louis Public Radio," Carrie Johnson, 11-13-12

Our firm handles situations similar to those discussed in this post. To learn more about our practice, please visit our St. Louis Internet crime page.

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