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In Discussion About Internet Privacy, It Comes Down To Expectation Versus Reality

Do you expect that your email communications are private? That police, for example, need the OK from a judge before they dig through your email or the GPS data transmitted by your phone?

Most people says David Lieber, the privacy policy counsel for Google, would think yes. But for the most part, they would be wrong.

Lieber was speaking at a panel discussion about privacy in the Internet age at New York University's Brennan Center for Justice in Washington on Monday.

"As users become more aware of where the law is versus where their expectations are, they'll become more interested," Lieber said. And they'll demand action from their elected officials.

At the heart of the discussion was the Electronic Communications Privacy Act, a 1986 law that still controls modern communication and allows for authorities to read electronic communication with only a subpoena.

But Lieber as well as Laura Murphy, of the ACLU, argued that Congress needed to act to make the standards for searching email clearer as well as uniform.

Lieber said Google's goal is for the "same procedural protections that apply when police want to search your home" to also apply to "searching your electronic records."

Kenneth Wainstein, a former homeland security advisor to President George W. Bush, took the government's side. He said in many cases — especially in those where the government is trying to prempt a terrorist strike — "emails would be critical to build a case" but there may not be enough proof for a warrant.

Also, Wainstein said, "speed is of essence" in many of these cases. These kinds of searches, said Wainstein, are the price we pay for for "having an effective intelligence operation."

"The probable cause argument has served the test of time," Murphy countered. "Why is it different for your personal communication?"

She said the average American would be outraged if City Hall asked them to print out their search history, for example, and turn it over to authorities.

This debate is, of course, not new. Back in January of 2011, The New York Times ran a story declaring that the 1986 privacy law "is outrun by the web." That story was in part sparked by a new-at-the-time Google initiative that made public the number and types of government requests for information they received each day.

The number of requests, said Lieber, continues to increase. (Here's a the data for the U.S., where you'll see the vast majority of requests came through subpoenas and not a search warrant or a court order.)

Monday afternoon's discussion was in part prompted by the FBI investigation that led to discovery of an affair between former Gen. David Petraeus and Paula Broadwell. It was also prompted by a bill written by Sen. Patrick Leahy, a Democrat from Vermont, that would require a warrant before reading people's emails.

As The Hill reported at the time, the bill made it out of the Senate Judiciary Committee with an overwhelming vote in November.

Google said it was pushing for the bill to become a priority this Congress.

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