What email privacy protections do U.S. residents currently enjoy?
That question is on the minds of everyone from Gmail accountholders and hard-core PGP fanatics to legislators and privacy advocates in the wake of the scandal involving David H. Petraeus. Petraeus resigned as director of the CIA after an FBI inquiry found -- in part via a shared Gmail account -- that Petraeus was having an extramarital affair.
The FBI's cyber-squad investigation was kicked off after Petraeus' mistress and biographer Paula Broadwell anonymously sent supposedly threatening emails to Jill Kelly, a friend of Petraeus. Kelly, who also happened to be friends with an FBI agent, was a rival in Broadwell's eyes.
But that's where the privacy picture goes murky. A source with knowledge of the investigation told The New York Times that "the squad was not even sure the case was worth pursuing." Furthermore, the FBI has yet to release any emails of a threatening nature, which has led some commentators to think that the outing of Petraeus' affair was personal, and that whatever flimsy pretexts emerge, the investigation likely violated Petraeus' privacy.
[ For more on Gmail's role in the Petraeus scandal, see Petraeus Fallout: 5 Gmail Security Facts. ]
"This is a surveillance state run amok," said journalist Glenn Greenwald in The Guardian. "But as unwarranted and invasive as this all is, there is some sweet justice in having the stars of America's national security state destroyed by the very surveillance system which they implemented and over which they preside."
In other words, the upside of the Petraeus scandal may be better privacy protections for the rest of us, by finally forcing Congress to update Americans' email privacy protections.
Here are seven related facts about where things stand:
1. Petraeus Case Particulars Remain Unclear
Legally speaking, it's still not clear which measures the FBI used to trace back the emails sent by Broadwell, or how they discovered that both she and Petraeus had logged into the same anonymous email account. Some sources have said that a probable cause warrant for the couple's emails was obtained by the bureau; others say not. If a probable-cause warrant was issued, however, to date no evidence has emerged that a crime was probably being committed, which means the warrant could have been illegally obtained.
2. Email Location Information Isn't Protected
While emails enjoy some privacy protections, the same isn't true for location information, even if it's embedded in an email. ECPA provides scant protection for your identifying information, such as the IP address used to access an account, according to an email privacy primer published by the Electronic Frontier Foundation (EFF). While Paula Broadwell reportedly created a new, pseudonymous account for the allegedly harassing emails to Jill Kelley, she apparently did not take steps to disguise the IP number her messages were coming from. The FBI could have obtained this information with just a subpoena to the service provider.
From there, the FBI would likely have searched for any email accounts that also associated with that same collection of IP addresses. "Webmail providers like Google, Yahoo and Microsoft retain login records -- typically for more than a year -- that reveal the particular IP addresses a consumer has logged in from," said Christopher Soghoian, principal technologist and senior policy analyst for the ACLU's Speech, Privacy and Technology Project, in a blog post.
Finally, after having identified the IP addresses from which the emails had been sent -- which included hotel Wi-Fi hotspots -- the FBI likely compared guest lists at the hotels for the days that the emails were sent to find which names they had in common.
3. Surveillance State Thriving
The Justice Department continues to argue that it needs even greater access to electronic communications or else it risks "going dark." Accordingly, it's argued that the Electronic Communications Privacy Act (ECPA), a 1986 law designed to protect the privacy of people's electronic communications, should remain unchanged. It's also been pushing Congress to expand the Communications Assistance for Law Enforcement Act (CALEA) to require more online services easier to wiretap.
But is U.S. law enforcement surveillance now out of control? According to a Google report released this week, government surveillance has been growing, with the United States making more requests to Google for user data than any other country.