The Petraeus scandal has galvanized tech companies and civil libertarians. Petraeus: Model for email privacy

Privacy buffs have struggled for years to make their fight to keep law enforcement out of email feel personal — and now they've got a face.

The David Petraeus scandal has galvanized tech companies and civil libertarians who want Congress to drag a 1986 statute called the Electronic Communications Privacy Act into the 21st century.


“One of the most difficult things about privacy reforms is sometimes it can be hard to put a face on the harm. It’s sort of a diffuse issue,” said Chris Calabrese, the American Civil Liberties Union’s Washington legislative counsel. “Well, the Petraeus scandal puts a face on it.”

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The argument: If the nation's top spy can't hide his personal communications from law enforcement — who can?

And even though the snooping uncovered an unflattering story about the general, it's put questions about digital privacy back in the news.

The privacy law does little to shield Americans' emails. Law enforcement agents generally don't need a search warrant to request access from an email provider to those messages if they're older than 180 days — an issue in an era when email storage seems limitless, and most consumers' inboxes are overflowing with notes that might contain personal information that's saved there for ease.

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The FBI has offered few details about how it obtained email as part of the Petraeus affair, but told POLITICO “legal processes were adhered to and followed.”

Privacy pushers are trying to turn the high-profile episode into a lesson for Congress and teach lawmakers that ordinary Americans' communications are just as vulnerable to prying law enforcement eyes.

“I think people do look at this and think, well, I certainly wouldn’t want to be in the position of having all this information exposed because someone sent a catty email. Maybe that will build more interest and more support for finally bringing these 1986 rules into the 21st century,” said Julian Sanchez, research fellow at the CATO Institute.

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To the satisfaction of consumer groups and tech companies, lawmakers have been working behind the scenes for months on an update to ECPA.

Even before the Petraeus incident surfaced, the powerful Senate Judiciary Committee actually planned to mark up a bill that could include a number of reforms to the old privacy rules — including an end to its disparate legal treatment of old emails.

Sen. Patrick Leahy (D-Vt.), the panel's chairman and lead voice on ECPA reform, did not comment for this story.

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Despite the appetite, there's also a sense in Washington that his efforts probably won't result in much immediate progress this year: Republicans still fear that an overhaul of ECPA might harm law enforcement, and the Obama administration hasn't commented much publicly on the debate. Still more, Leahy's counterpart in the House — Rep. Lamar Smith (R-Texas), who leads the Judiciary panel there now — didn't do much to revisit the law in the 112th Congress.

The hope, though, is the Petraeus incident might set the stage for a quick ramp-up in activity next year. Leahy is returning, and Rep. Bob Goodlatte (R-Va.) is taking over for Smith in the House. And Goodlatte already has pledged he'd consider taking up ECPA reform in the next Congress.

“I certainly agree that ECPA is something that Congress should look at closely to see if updates or reforms are necessary, but I do not think that it is possible to complete the thorough examination that is needed in the short amount of time we have in this lame-duck session,” Goodlatte said this week.

That confluence of political momentum and personnel changes certainly has reform advocates feeling optimistic. To them, the factor long establishing the need for Congress to act has been the patchwork of confusing and sometimes conflicting federal court decisions, including a Supreme Court ruling earlier this year that cast doubt on the government's handling of location data — another point of contention in the broiling privacy debate.

“I think the prospects for this are pretty good, given that the issue has been debated for years now," said Greg Nojeim, senior counsel at the Center for Democracy & Technology. "And how it should be resolved is becoming increasingly clear."

In sum, Nojeim said, the "pendulum is swinging."

"Law enforcement is increasingly recognizing the direction in which the courts, and public opinion, are moving on email privacy," he explained.

Nojeim's group, meanwhile, is playing a leading role in the Digital Due Process coalition, a group of tech companies and stakeholders committed to ECPA reform. And CDT recently joined with others in Washington, including the Competitive Enterprise Institute and TechFreedom, to launch the "Vanishing Rights" online campaign to call for reform.

One of its supporters, the Electronic Frontier Foundation, blasted out to followers Thursday a lengthy explanation as to how the FBI was able to trace email back to Paula Broadwell, who had been allegedly harassing Jill Kelley under a pseudonym. EFF's larger point: There's a disparity in the law.

"Sound confusing? It is. ECPA is hopelessly out of date, and fails to provide the protections we need in a modern era," the group acknowledged. "Your email privacy should be simple: It should receive the same protection the Fourth Amendment provides for your home."

It won't be so simple, though, moving reform along Pennsylvania Avenue. Still prevalent among GOP lawmakers is a sense that ECPA reform could harm law enforcement or make investigations in emergencies all the more difficult to complete.

And there are overlapping issues making the debate more complicated — such as a push on Capitol Hill to establish privacy protections for smartphone owners. There's bipartisan legislation — backed by many ECPA reform supporters — that would make it more difficult for law enforcement to access location information as part of an investigation.

It ultimately may prove to be a tough slog, especially if the Petreaus saga has faded from headlines by then. But the privacy advocates, tech companies and others pushing most aggressively for reform say they still think it's the catalyst for Congress to act.

This article first appeared on POLITICO Pro at 3:13 p.m. on Nov. 16, 2012.