Petraeus Probe Highlights Holes in Outdated Wiretap Laws

November 15, 2012 – In The News
Law360

The FBI’s recent investigation into the relationship between resigned CIA Director David Petraeus and his biographer serves as a wake-up call that current privacy laws do not shield investigators from access to even the most intimate of online correspondence. This brings to light the gaps in outdated wiretap laws that Congress should be anxious to fill, attorneys say.

Petraeus’ resigned from his position with the CIA on Friday, November 9, after the FBI’s cyberstalking investigation into harassing emails sent anonymously to Jill Kelley led to the discovery of an extramarital affair between the retired general and his biographer. The FBI is yet to confirm its motive or method for accessing this information

The awareness of these gaps in privacy protection is important not only for individuals but also for corporate executives that may include future company plans, trade secrets and other information that they want to protect in their electronic communications.

The recent revelation that the government’s investigation has also turned up thousands of pages of “potentially inappropriate” electronic communications that the top commander in Afghanistan, Gen. John Allen, sent to Kelley further demonstrates the potentially broad net that law enforcement probe of a corporation could cast, Fox Rothschild LLP partner Mark McCreary noted.

“In the corporate context, if the FBI is monitoring an executive’s email for some reason and they turn up an unrelated conversation about someone considering committing a corporate crime like securities fraud, even if that person would never act on it in real life, the police can’t ignore that and now there’s an investigation and the police are involved,” McCreary said.

While most corporations have taken steps to implement basic safeguards to protect the securities of electronic communications and to lay out restrictions on the use of business email accounts for personal purposes, these protections may not be enough to prevent the disclosure of sensitive information through employees who have failed to use better judgment.