When retired four-star general and former CIA Director David Petraeus resigned from his post this month after admitting to an extramarital affair, one of the more startling revelations was that the dalliance was discovered when the FBI sifted through his private Gmail account.

The spy chief had been out-spied.

More alarming is that the average American could easily be subjected to the same snooping that Petraeus endured. According to current law, police can access email through a provider, like Yahoo or Gmail, without a warrant if the message is more than 180 days old.

The rule is a relic of the Electronic Communications Privacy Act of 1986, written before legislators could dream of the explosion of technology and ubiquity of email, text messaging, online chatting and other communications that leave behind an electronic trail.

The Senate Judiciary Committee met on Nov. 29 to consider an update to the Act which would require police to get a warrant to read email or other electronic communiques.

The proposed change comes as technological advances continue to give law enforcement more efficient and invasive ways to track people, while privacy laws struggle to keep up. Citizens might be surprised to learn that their email accounts, their phones and even their houses are subject to warrant-free electronic surveillance.

Leap Frog Technology

While the Electronic Communications Privacy Act may be outdated by about 25 years, that doesn’t mean that people need give up their reasonable expectation of privacy within new technologies, argues Bruce A. Barket, a criminal law attorney with New York firm Barket Marion.

“The Fourth Amendment of the United States Constitution was enacted in 1791,” Barket says. “It was enacted at a point of time to deal with government intrusion and searches that they could possibly comprehend. Now we have government searches that nobody up until the last 10 years could even envision. Could you ever envision that the government could track every movement by simply calling up a cell provider?”

At times, when lawmakers have been slow to act, courts have stepped in to curb investigative excess, such as in this spring’s Supreme Court ruling that police need a warrant to place a GPS tracker on someone’s car. The court did not deign to make a decision about tracking cell phones through GPS or other technology, however, an option that law enforcement is still free to take advantage of, sans probable cause.

Barket, who was one of the attorneys to originally challenge police use of GPS devices nearly a decade ago, points out that as even newer technologies emerge, we will be caught in a never-ending loop of efforts to protect privacy from intrusions that aren’t yet governed by law.

“It’s kind of like a leap frog. Technology will not stop happening,” the attorney says. “Courts are going to have to interpret old laws and new technologies to make reasonable decisions as to what law enforcement should be allowed to do and not allowed to do. Ultimately legislators will have to catch up.”

Creep Factor

While the technologies are new, the debate is old, dating at least as far back as 1928, when the Supreme Court ruled in Olmstead v. United States that eavesdropping on private telephone conversations without a warrant did not constitute a Fourth Amendment violation. The ruling stood until 1967, when in Katz v. United States a different set of justices overturned the previous decision and ruled that callers do have a reasonable expectation of privacy over the telephone.

Cell phones could be the next benchmark, not only because police can see everywhere a person has been using the phone’s GPS or cell tower location information, but because if a person is arrested a vast amount of personal information stored on a smartphone could be at an officer’s fingertips.

“Someone puts data into their phone, birthdays, anniversaries, contact info, text messages, boyfriends, girlfriends, emails with all these people– you have the expectation that that information is not going to be shared with the government simply on the whim of their asking,” says Barket. “Ultimately, courts, I hope, are not going to let that happen.”

When judging what constitutes a reasonable expectation of privacy, he notes, there is an informal test as to whether police might have gone too far. “There is a creep factor,” Barket says. “How creepy does it make you feel?”

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