It’s not the adultery, it’s the invasion of privacy:
The fishing expedition into Broadwell’s emails should, on its face, be considered a violation of the Fourth Amendment—while the FBI apparently had a search warrant, it’s hard to see how this warrant was obtained with the “probable cause” the Constitution requires. But the real scandal here is what’s currently considered to be legal. After a 180-day period has elapsed, private emails are currently considered public and require only a subpeona to a provider to be accessed. Even worse, the government contends that even inside the 180-day window opened emails carry no expectation of privacy. As Adam Serwer of Mother Jones puts it, “If you think the feds need a warrant to start looking at your email, you’re dead wrong.” The standards created by the The Electronic Communications Privacy Act from a time when most emails were downloaded rather than stored on a third-party server remain in place. In the current technological context, these standards are privacy shredding.
The invasions of privacy in this case make the need for major changes in the law clear. First of all, the federal courts should make clear that there is the same Fourth Amendment right to privacy in electronic communication that there is in telephone calls. The government should have access to emails only after obtaining a warrant after the showing of probably cause. Cases like the investigation of Broadwell’s email—in which “evidence” of wrongdoing that would not be considered adequate cause if applied to snail mail was enough to obtain a warrant—should not go forward.
And much more needs to be done to protect the privacy of employees. A recent decision by the Supreme Court of Canada provides a valuable road map. “Canadians may therefore reasonably expect privacy in the information contained [workplace] computers, at least where personal use is permitted or reasonably expected,” wrote Justice Morris Day. This is the right approach. The Fourth Amendment should give government employees a presumptive expectation of privacy in their electronic communications, including those on workplace computers. And the privacy of private employees should have a similar expectation of privacy established by federal statute. The fact that emails and text messages are stored on third-party servers should not be used to immolate the privacy of individuals.