David Petraeus

The Petraeus Affair, the Police, and Your Privacy

Time to rein in invasive police email snooping.

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If the private emails of the head of the Central Intelligence Agency aren't safe from police snooping, how safe do you think yours are? As all of the world now knows, former general and CIA director David Petraeus and his biographer Paula Broadwell have engaged in some extramarital hanky panky. Without rehearsing the details of their liaison, the affair was uncovered when investigators from the Federal Bureau of Investigation raided their email accounts.

On what authority did the FBI obtain and read their emails? Largely its own. A senior FBI official or a federal prosecutor can simply issue an administrative subpoena, without a judge's approval, requiring an Internet service provider to turn over emails and other electronic records without notifying the user. Unless charges are filed or information is artfully leaked to the media as in the Petraeus affair, the user may never know that law enforcement has been prying into their private data.

How can law enforcement get away with snooping into our emails and other documents stored online? After all, the Fourth Amendment guarantees the right of citizens "to be secure in their persons, houses, papers, and effects," against unreasonable searches and seizures by government agents without a warrant based on probable cause. It is long settled law that the police must get a warrant approved by a judge based on probable cause to look at a citizen's personal mail or documents. But not if those documents are located on third party servers in the "cloud," argue the FBI and other law enforcement agencies.

The FBI's claim to be able to access your private emails and documents rests on the agency's interpretation of the Electronic Communications Privacy Act (ECPA) of 1986. When enacted more than 25 years ago, the ECPA updated wiretap monitoring and data storage provisions to protect against snooping by private third parties. The ECPA also required that law enforcement obtain a probable cause warrant from a judge to gain access to emails in transit, emails stored on a home computer, and unopened email stored remotely for 180 days or less.

However, the ECPA permits the police to use administrative and other subpoenas to look at opened emails and unopened emails stored remotely for more than 180 days whenever the police claim that they have "reasonable grounds to believe" that the information sought would be useful in an investigation. In contrast, the higher probable cause standard for obtaining a search warrant requires that the police show a judge the information being sought is actual evidence of a crime. The rationale justifying the use of a mere subpoena is that the opened emails are not being "stored" and those unopened for more than 180 days are "abandoned property" in which the owner no longer has any expectation of privacy. In addition, any messages in your sent box or draft messages are not considered to be stored and are thus open to police scrutiny.

Police snooping into our electronic communications is rising steeply as Google's Transparency Report earlier this month made clear. In the first half of this year, U.S. law enforcement made about 8,000 demands for user information and Google complied with 90 percent of them. Oddly, Google does not reveal how many of the police demands for information about its customers were backed by probable cause warrants.

The ECPA was adopted before online services offered their customers cheap massive storage. Remember when you had to clean out your AOL mailbox every few weeks? Now I have nearly 120,000 emails (mostly unopened) in my Gmail inbox. Currently, the police interpret the law as giving them the right to read nearly every one of my emails and attached documents should they persuade themselves that it might be useful to do so in the course of an investigation.

Did the FBI get a warrant to look at the emails exchanged by Petraeus and Broadwell? "We don't know," says American Civil Liberties Union legislative counsel Christopher Calabrese. He pointed to a number of conflicting accounts in the news that suggested that they could have been obtained by simple administrative subpoena and that perhaps a warrant was later issued as the investigation proceeded.

Earlier this year, Sen. Patrick Leahy (D-Vermont) had introduced the ECPA Amendments Act that would have required law enforcement to obtain a probable cause warrant from a judge to gain access through third party providers to private emails and other documents stored on the Web. In addition, the police would have had three days in which to inform the customer of the warrant and the information obtained. Customer notification could have been delayed if the police can persuade a judge that it would, among other things, result in endangering the life or physical safety of an individual, provoking flight from prosecution, or in the destruction of evidence.

The ACLU's Calabrese adds that the ECPA needs further strengthening by requiring law enforcement agencies to issue periodic reports on how extensively the police are using their electronic surveillance powers. Congress and the public cannot regulate or object to activities that they cannot see. In addition, the ECPA needs a provision specifically mandating that information obtained in violation of the amended act not be admissible in court.

Now comes possibly bad news. CNET is reporting today that Leahy has done essentially a 180-degree turn and is now proposing to amend the ECPA in ways that would dramatically expand the power of law enforcment to surreptitiously read and monitor the private online communications of American citizens. The revised legislation, according to CNET, "Grants warrantless access to Americans' electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause."

However, Leahy's office (via Twitter) is denying the accuracy of the CNET report and insists that the proposed amendments to the ECPA will, in fact, require that "the disclosure of the content of email and other electronic communications by an electronic communication or remote computing service provider to the Government is subject to one clear legal standard —  a search warrant issued based on a showing of probable cause." The Senate Judiciary Committee may vote on the amendments next week.

If it turns out that Congress will not defend us against intrusive government surveillance, perhaps the courts will. For example, in 2010 the U.S. Court of Appeals for the 6th Circuit in the case U.S. v. Warshak ruled, "The government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause."

In the modern world, our private papers and communications are digitized and stored in the cloud. It is way past time that law enforcement's invasive surveillance powers be reined in by extending the Fourth Amendment's protections against unreasonable searches and seizures to cyberspace.

Disclosure: I am still a card-carrying member of the ACLU.

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  1. “Ronald Bailey is a science correspondent at Reason magazine and author of Liberation Biology (Prometheus). He also frequents internet porn sites and stores spank shots on his laptop-something his wife will find out about if he doesn’t stop sticking his nose where it doesn’t belong.”

    1. Tim: For which agency do you work?

    2. Hey, ignorant nunchuck, there are more than a few wives out there who partake and enjoy their spouse’s spank file- in fact, many women create their own orgasm files. The old adage of the narrow-minded klutz wife with repressed and traditional sexuality is a mainstream media stereotype.

  2. I never did like General BeTrayus, Dude is corrupt as the day is long!

    http://www.Go-Anony.tk

  3. This wasn’t a case of routine snooping though. (Although all government bureaucrats should have their email audited regularly.) Ho A notified the FBI that she was being threatened. Shirtless FBI guy investigated, tracking down Ho B and became alarmed that Ho B had access to a private email account owned by the head of the freakin’ CIA. Further investigation showed that Ho A was socializing with Generals Tweedle Dumb and Tweedle Dim, and General Dim was sending Ho A frequent nasty grams, while General Dumb was actually banging Ho B. Meanwhile, Ho A and her twin sister, both foreign nationals, were partying up with CentCom in Tampa, and Ho B had stashes of confidential info at her house.

    What I want to know is, did the FBI get a warrant to correlate Ho B’s hotel registrations from her book tour and the IP addresses of the emails she sent to Ho A, or do the hotels and the IP providers just treat that as public info when asked?

  4. Although all government bureaucrats should have their email audited regularly, wasn’t a case of routine snooping though..
    FR107

  5. i’ve written a couple dozen of these there admin subpoenas. they no longer meet const. law scrutiny in my jurisdiction, but back when i worked street crimes they did.

  6. The director of the CIA and a woman commissioned as a reserve component lieutenant colonel in the Military Intelligence branch of the U.S. Army decide on rudimentary scheme to exchange emails through a draft folder in a shared email account. This turns out to work as well as a screen door on a submarine.

    Then, an FBI special agent decides to exchange emails with the second woman in the love pentagon – apparently unaware that communications over social media with a key figure in the case will likely turn up at some point. Meanwhile, the aforementioned second woman, who turns out to be hundreds of thousands of dollars in debt, was given access to an Air Force base where Central Command used to be (still is?) located, because she throws nice dinner parties.

    No wonder it took a decade to get bin Laden. How do these people find their way to work in the morning?

    What a gigantic circus of idiots.

  7. Good question, Robert. How do they find their mouths with a fork often enough not to starve to death?

    First, a “warrant signed by a judge” is probably worth more or less what they pay for it… Just why should anyone trust a judge in this or anything else?

    If this old lady can use GPG encryption for email and other stuff, it would seem that most anyone can. There really isn’t any valid excuse not to do so for all exchanges, let alone anything sensitive.

    Instead of crying about what is “legal” or “constitutional” or any of that stuff, why not take the elementary precaution of encryption? Then we can proceed to hang the bastards…

  8. As a Commander in the Navy I am held to a much higher standard than the FBI for snooping in my sailors email accounts when I have belief of wrong doing. I have to get a warrant to access government servers holding emails typed and sent on government computers where there is a banner telling anyone using the computer they are subject to monitoring. Does anyone know if it any more difficult for law enofrcement to snoop in email accounts you are paying for? ie I don’t use any of the free services but pay $5/month to maintain an email account so don’t I have a reasonable expectation of privacy for “renting” 10MB on earthlink’s server?

    If you are interested, here is the case that applies to the UCMJ http://www.armfor.uscourts.gov…..5-5002.pdf

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  10. Are we back to the Hoover days with the FBI hoovering up emails without
    a court order and leaking the investigation in a partisan way?
    There is a new video that I saw that deals with this issue as a
    parody. Its funny but scary. The video suggest we all hide our internet
    traces using a VPN, but how did we get into this postion as a country? Since the
    Patriot Act have we given up so many freedoms that our only recourse is to hide
    under a technology rock? That this in fact happened to our CIA Director is stunning.
    Shouldnt the FBI be vilified in this? But somehow they are not and it has become a
    personal tragedy rather than a governance tragedy. The media has barely covered
    the FBI side of the scandal.

    Check out the the Petraeus Broadwell Parody
    http://www.youtube.com/watch?v=_rMjnY-0q7M

  11. The memo went on to say that FOIA, which is the primary legal means by which citizens can petition the federal government to cough up information, “should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure http://www.cheapfootballcleatsairs.com/ should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”

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  14. Compared to all the other far more serious scandals going on in Washington, I imagine that Petraeus was deliberately targetted before being shafted. The really interesting question is, of course, why?

    What does he know or was he going to do that warranted such behavior? Now the NSA is collecting all that data on YOU, could you be blackmailed to reliably do as you’re ordered?

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