Petraeus scandal provides lesson on email privacy

Employees don't have right to email privacy at work

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When you send your friend an email from your personal Yahoo, Gmail or AOL account, you probably think it's a private message that only the two of you can read. However, the developing scandal involving former CIA director David Petraeus demonstrates that those private emails you're sending might not be so private after all.

Petraeus, the retired Army general who took over as head of the CIA last year, resigned on November 9 amid an FBI investigation into an affair Petraeus allegedly had with Paula Broadwell, the author of his biography. That investigation reportedly began with an FBI search of sexually explicit emails sent between Petraeus and Broadwell as well as harassing emails sent from Broadwell to a Petraeus family friend.

The FBI was able to search those emails – which were sent using personal email accounts – because of the Stored Communications Act. This law, enacted in 1986, allows federal government entities to require Internet service providers to disclose their customers' private emails in certain situations. If an email is less than 180 days old, the government entity must provide a warrant to access the message. A warrant requires demonstration of probable cause that a crime is being committed. If an email is older than 180 days, the government must provide a subpoena or a court order, which is easier to get than a warrant.

"While the FBI is not likely monitoring the emails you send to your friends or co-workers, we all need to understand that it is very difficult these days to do anything that's completely private," says attorney Martin Sweet of legal information website THELAW.TV.

That is particularly true at work. Most white-collar employees send dozens or even hundreds of emails a day from their work accounts. If you think those emails you send at work are private, you might be in for a rude awakening. Since employers own their email systems, generally speaking they are allowed to monitor emails sent from their employees' accounts. This is also true of text messages sent from company phones, whether those messages are work-related or personal. Employers can even listen to phone calls you make from your office or work cell phone, though they are supposed to stop listening if it is determined that the call is of a personal nature.

Interestingly, even though the Petraeus emails were allegedly sent from a personal account, he might not have had any right to privacy at all. People who hold government positions of high security often sign a disclosure document that waives their right to personal email privacy. It is not known if Petraeus signed such a waiver.

"The lesson we should all take away from this is that we have to be very careful about the information we include in our emails," says Sweet. "As a wise person once said, don't ever include anything in an email that you wouldn't want to read in the New York Times."

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