Will Senate Bill Restore Lawyers' Client Privacy Protections?

Posted by Chris Morales on Fri, Nov 30, 2012 @ 03:17 PM

emails, searchIf you're a criminal lawyer, take note that current and future clients' privacy rights may just have been significantly restored, in that electronic communications older than six months of age can no longer be seized by law enforcement without a warrant.

Here's the scoop. The Senate Judiciary Committee has just passed a law as of Thursday, November 29, 2012 that now requires law enforcement to actually have a search warrant issued by a judge before they can gain access to an individual's emails or other forms of electronic communication. This means that it's more difficult for the government to access an individual's emails and files from sites like Facebook, Google, and Yahoo for any purposes, including evidence gathering or surveillance in criminal cases. Under the present law, the 1986 Electronic Communications Privacy Act, only emails less than six months old are currently covered under this protection, with everything else fair game.

How the Petraeus case highlights civil liberties and privacy issues

Why is this so important? And what did the case of recently disgraced General David Petraeus, who resigned as head of the CIA last month when emails provided documentation and helped reveal his affair with biographer Paula Broadwell, do to highlight the gaping holes in privacy protections -- protections every citizen should be able take for granted (and every criminal lawyer as well)?

Petraeus' case is not just another scandal involving a high profile political figure. it highlighted just how easy it is for law enforcement to simply assume control of people's private files – and indeed, they had a perfect right to do as they pleased with any email older than six months prior to this bill's passage. Those who advocate for privacy and civil liberties say that this bill's passage is a big step toward restoring citizens' privacy protections to those of the pre-electronic age. 

In Petraeus' case, his affair with his biographer, Paula Broadwell, was brought to light when a simple court order allowed FBI agents to read messages between Petraeus and Broadwell before Broadwell was informed that she was even under investigation. Further, grand jury subpoenas were sufficient to give them information about other electronically-based communications Broadwell had in relation to messages she sent to a Tampa woman Petraeus was also allegedly involved with.

For the criminal lawyer, the onus is back on citizens' (clients') rights

For the criminal lawyer, this ruling puts the onus back on private citizens' rights. No longer is it possible for law enforcement simply to seize communications older than six months of age without the explicit consent granted either by a judge's warrant or the subject in question. It also means that a target of an investigation will no longer be kept in the dark unless strict protocols are met. In other words, private electronic communications are as explicitly protected for private citizens as paper-based ones are.

Republican disagreement...

 Top Republicans have claimed that this prevents law enforcement from doing their jobs, because agencies such as the Securities and Exchange Commission will have a much more difficult time protecting consumers against crimes like fraud. Nonetheless, prosecutors and other professionals who specialize in privacy issues, including attorneys and judges, say that this will not negatively affect judicial efficiency. While Petraeus' situation is just one example, it highlights just how easily private information could be made public simply because law enforcement had the right to access any electronic files they wanted to without the explicit and carefully controlled permission granted by a judge's warrant.

...but experts' endorsement

Former president of the National District Attorneys Association Joseph Cassilly agrees; warrants must already be gotten for anything less than six months old. Further, law enforcement can still obtain Internet provider third-party routing data with a simple subpoena that's been signed by not a judge, but a federal prosecutor, to identify who's sent an email under investigation and the location that the email was sent to. That same simple subpoena allows investigators to collect the "to" and "from" addresses of emails under investigation (although contents are protected without a warrant). Further, probable cause need not be shown to obtain a subpoena. Instead, only the reasonable suspicion that a crime is being committed is necessary to obtain one. For the criminal lawyer, this gives clients protections and restores the checks and balances needed to protect their privacy and yet maintain law and order at the same time.

Tags: search and seizure, emails