Senator's bill raises privacy concerns

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by Jay Crandall

azfamily.com

Posted on December 21, 2012 at 11:08 AM

Updated Friday, Dec 21 at 11:08 AM

PHOENIX -- The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause...

The Fourth Amendment of the U.S. Constitution seems clear, your personal papers, files, documents are protected from search without a warrant.

But a bill recently brought up by Sen. Patrick Leahy would have given up to 22 different federal agencies the right to access e-mails, Google docs, Facebook information and more all without a warrant. And attorney Steve Tully said we all should pay attention to that.

“I think everybody ought to be concerned,” he said.

Tully, who works at Gordon Rees, said technolgy has muddied the clear language set out in the Constitution.

“In the old days we would send a letter, maybe there was a carbon copy of the letter, that somebody kept, those were the only copies, if law enforcement wants it they have to get a search warrant and ask for it,” Tully said.

But what happens when your correspondence is an e-mail stored on Google's servers or pictures and music stored on Apple's iCloud? Tully said that is where it gets tricky.

”So the question is are you keeping your personal affairs to yourself or are they someplace in the possession of somebody else,” he said.

Under current law, emails over 6 months old are already deemed abandoned, and subject to search without a warrant.

Leahy's bill appeared to expand that, allowing searches of more recent emails.

But Tully said what appears secure is information on your own server or your own computer.

”If you have your own email stored on your own server they would still need a search warrant to get that information,” he said.

And Tully said there is good cause for law enforcement to seek a warrant. As we recently saw with Gen. David Petraeus, what started as an investigation of a possible security leak, ended up exposing much more.

“Prosecutors, investigators, once they think someone has committed a crime, they get competitive, like other people," Tully said. "So there has to be a check on that.”

He said there will be a constant struggle between law enforcement, working to stop crime, and keep us safe, and our own rights to privacy but adds if you really want to keep it private, “Take the pen out and right a letter and write a handwritten note, and hope the person you send it to doesn't make a photocopy and put it on the Web.”

Leahy’s bill has currently been shelved but has said it could come up again.  

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