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Emails played a key role in the downfall of David Petraeus, and the FBI investigation into those emails is leading to renewed questions about law enforcement's access to electronic communication. Tech companies and civil liberties groups hope the scandal will breathe new life into efforts to make it harder for the governments to seek personal data online. NPR's Martin Kaste reports.
MARTIN KASTE, BYLINE: The tech industry has been lobbying hard for an update to the 1986 online privacy law. There is a bill in the Senate, but it's languished in committee since last year. Now, suddenly, there's new interest.
RICHARD SALGADO: The most recent news that's been all over the place certainly has highlighted this issue.
KASTE: Richard Salgado is legal director at Google. He can't comment on whether his company played a role in the Petraeus investigation. But he says most of the time, police come to Google asking for information that will help them identify a user - say, the owner of an email address.
SALGADO: The police come to us with a subpoena and have identified an email address of interest to them. And have asked for information that the user provided in creating that email address.
KASTE: The information includes IP addresses, the numeric code of the computer you used when you logged into that anonymous Gmail account that you keep for private matters. The fact that the police can get that with a subpoena - which is just a letter, usually without approval of a judge - is deeply disturbing to civil libertarians like Chris Calabrese, legislative counsel at the ACLU.
CHRIS CALABRESE: Before the government engages in a really invasive investigation like this, a judge should be involved. You know, they should use the same standard as if they searched your house, which is they should get a warrant based on probable cause.
KASTE: The ACLU and its tech industry allies want warrant-level protection for most online data, even data that experts call transactional - for instance, the addresses of websites you visited or your phone's location history. But Scott Burns says Americans should understand how much more work that would be.
SCOTT BURNS: The difference is, an investigative subpoena is a one- or two-pager, and a search warrant is a book report.
KASTE: Burns is head of the National District Attorneys Association. He says all those extra warrants would make life incredibly difficult for police. And he says asking for transactional data - say, the connection records from an internet service provider - is not that intrusive.
BURNS: I don't think anyone would disagree with the fact that, you know, matching an ISP is much less invasive than an investigator looking over hundreds and perhaps thousands of emails or texts.
KASTE: And in the last few years, there has been a shift toward more protection for content, for what's inside those emails and texts. While federal law does not require warrants for content left online more than six months, in practice, Burns says, local and state prosecutors almost always do get warrants. Google also takes this position, telling police to get a warrant for content, no matter how old. Still, the ACLU's Calabrese wants to see that standard enshrined in federal law, and he's hoping for new momentum.
CALABRESE: Always the most difficult piece of privacy law is to put a face on it. Well, I think the Petraeus scandal has, you know, solved that particular problem.
KASTE: But the Petraeus scandal has not yet put privacy on a fast-track on Capitol Hill. One committee staffer says members of Congress who support tighter rules want to wait to see more details about how and why the FBI took its investigation as far as it did. Martin Kaste, NPR News.
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