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Is the government reading your emails right now?

Molly Wood Jun 6, 2012

Law enforcement officials have a court order to access your emails, where you made phone calls, all sorts of electronic information.

Or they don’t have that court order.

Thing is, you don’t know either way.

In a new paper, U.S. Magistrate Judge Stephen Smith estimates about 30,000 electronic surveillance orders are issued each year in federal courts, a number he finds alarming. Unless the orders lead to actual charges, the person being watched doesn’t know.

Jeffrey Rosen from George Washington University Law School says the secrecy traces back to 1986’s Electronic Communications Privacy Act or ECPA.

Jeffrey Rosen: For certain kinds of judicial orders or warrants, the presumption of ECPA is that the existance of the warrant shall remain secret unless the judge determines otherwise.

Moe: 1986. That was quite some time ago.

Rosen: It sure was, and that’s why lots of people think ECPA is long overdue for reform. It has all sorts of odd quirky. An email gets different amounts of protection based on whether you’re typing it, whether it’s transmission, or whether it’s been received. Stored documents get different protection based on whether they’re stored on your desktop, in which case a warrant is required, or whether they’re stored on the digital cloud, in which case, it isn’t.

You might think, well, I’m no criminal, they’re not watching me. Privacy researcher Chris Soghoian says not so fast. “You don’t have to be the suspect of an investigation to have the government looking through your private files. It’s routine in surveillance requests for geographic location information for the government to get information about every person who’s been near a particular place. So if there was a crime committed at a 7-11, the government will get information about everyone who’s been at that 7-11 within an hour of the crime.”

And you thought you were just getting a Slurpee.

This can happen because of a legal precedent known as the third party doctrine. If I send you a letter, it’s private between us. If I use Gmail to send it, that’s a third party, and we lose some of that protection.

This idea is being questioned at a high level. Rosen says Supreme Court Justice Sonia Sotomayor recently called for the third party doctrine to be re-examined. “She noted that this would mean the government could get our location information from cell phone companies without physically invading our property or affixing GPS devices to our cars, and more broadly, she said this Third Party Doctrine is the biggest threat to digital privacy in the electronic age.”


And presenting: Tech Report Theater. I will play Google, producer Larissa Anderson will play Apple.

Larissa Anderson: We need to talk, Google. About us.

Moe: Something wrong, Apple?

Anderson: I’ve been using Google Maps on the iPhone for years.

Moe: And?

Anderson: I’m breaking up with you. At least according to the Wall Street Journal. The next version of my operating system will have Apple maps, not Google.

Moe: But WHY?!

Anderson: You know why. I made the iPhone and then you come out with Android phones. They look awfully familiar. You stole my idea. AND I’VE NEVER GOTTEN OVER IT.

Moe: Oh, don’t play the martyr, Apple. It’s about money. You want to keep the money from ads displayed on that app.

Anderson: Yes! And it’s about power. If I have Apple maps, my brand is more appealing and I sell more hardware.

Moe: It’s always about selling hardware, isn’t it, Apple?

Anderson: Yes! That’s all I’ve ever loved! Hardware sales!

Moe: Aaand curtain.

Anderson: Wow, that got intense.

Moe: I know, I really hope we get an award or something.

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