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Sex, Lies, Videotape, and Email

The shirtless photo of FBI agent Frederick Humphries is just one curiosity in a strange, sordid tale that made its way out of Washington, D.C. (by way of Tampa) last week.

The photo is kind of silly, not sexy. And the Petraeus scandal, though real and a serious mistake on the part of the general, is not as big a deal as many first imagined.

What it all ends up being is a window into a different story: the profound ability that government agents have to access email and other very revealing records.

To recap: Tampa-area socialite Jill Kelley received emails criticizing her from an anonymous source. She reported it to an FBI agent friend (pictured, shirtless). He started an investigation even though there wasn’t much sign of illegal behavior. The investigation turned up the Petraeus affair and suggested a second relationship between Kelley and another general, which turned out to be not much.

So how does the FBI go from learning of anonymous critical emails to ending the tenure of the CIA director?

Julian Sanchez writes:

While we don’t know the investigators’ other methods, the FBI has an impressive arsenal of tools to track Broadwell’s digital footprints — all without a warrant. On a mere showing of “relevance,” they can obtain a court order for cell phone location records, providing a detailed history of her movements, as well as all people she called. Little wonder that law enforcement requests to cell providers have exploded — with a staggering 1.3 million demands for user data just last year, according to major carriers.

(Disclosure: Sanchez is a colleague of this author at the Cato Institute.)

In a few weeks, the Senate Judiciary Committee will consider a bill to make it a little harder for law enforcement to get access to emails.

H.R. 2471 is the bill. It started as an update to a video privacy protection law, and it passed the House as such. But the Chairman of the Senate Judiciary Committee, Patrick Leahy (D-VT), plans to add email privacy protections to the bill. In briefest summary, Leahy’s bill would require police to obtain warrants before reading people’s emails, Facebook messages, and other electronic communications.

A copy of the Chairman’s substitute amendment is here.

What you think of the bill and the Chairman’s plans depends on whether you see email as something that is private or something that law enforcement should be able to access even if they don’t reasonably expect they’ll find evidence of crime.

Here’s the current vote on the bill (not yet including the email privacy protections). Click to vote, comment, learn more, or edit the wiki article on the bill.

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