By Matthew Scott

Last of two parts. (Part 1)

Sweeping warrants recently issued in the Jussie Smollett special investigation pit privacy rights against law enforcement. Today’s report details the perils in unsent or draft emails and texts.

Chicago special prosecutor Dan Webb must prove fraud in last year’s
alleged Jussie Smollett attack — and that most likely enabled him to get warrants for deleted and unsent information from Google, New York privacy advocate Adam Wandt told Digital Privacy News.

Fraud cases often require law enforcement to probe deeper to prove intent and motive, explained Wandt, assistant professor of public policy at the John Jay College of Criminal Justice.

Because so many crimes are growing in sophistication, prosecutors are asking for — and obtaining — greater access to digital information. Warrants seeking access to email drafts, deleted emails and GPS tracking data from multiple platforms now are extremely common, Wandt said.

Criminals have been found to delete or manipulate such data to commit and hide illegal activity. Terrorists were the first to evade authorities by communicating through email drafts without sending them.

“They’d type up a draft, do not send it, then somebody else logs in to the same account,” he said. “That person then reads the draft, and they delete it.

“There is never an actual sent email,” Wandt noted, but the message is communicated.

The “strategy” has been replicated in organized crime — and now is common among drug dealers and fraudsters worldwide.

Prosecution vs. Privacy

That Cook County Circuit Court Judge Michael Toomin also ordered Google last Dec. 6 to hand over the drafted and deleted emails of Smollett and his manager, Frank Gatson, caused some experts concern.

Once considered an invasion of privacy, authorities see getting access to such data as key to showing the intent and planning of crimes and probable cause.

Now, any deleted email or draft — sent or not — could end up with
law enforcement, experts told Digital Privacy News.

Legal requests for such data are becoming more frequent as digital-information platforms continue to proliferate.

“If you are building these systems that collect these vast troves of information about people, law enforcement will inevitably come to collect that information,” said Mark Rumold, senior staff attorney for the Electronic Frontier Foundation.

‘They Have a Life of Their Own’

Since the Smollett warrants came through the courts, experts doubted the case would bring forth new laws to restore some digital privacy rights of the accused.

They do, however, demonstrate how the volumes of data authorities can obtain for investigations now can envelop wide swaths of the digital universe.

“Whether we’re sending a text message to a friend, a photograph of ourselves, or whether we’re writing a social media post,” John Jay’s Wandt told Digital Privacy News, “it’s important for us all to remember that those posts are not easily deleted.

“They do have a life of their own.

“With the proper legal process, the government is able to find them and use them against you.”

Matthew Scott is an editor and writer in New York.

Illustration: DPN/Cheyanne Salmon.