All is fair in love and email: the Petraeus scandal as a case for digital privacy reform

Petraeus Bobble HeadAs news media gossips on a sex scandal that transformed Pentagon corridors into high school hallways, their chatter belies a critical discourse surrounding the investigation of former CIA director David Petraeus.  Besides gratifying a cultural fixation with the salacious, the Petraeus scandal invokes inquiry into how the FBI could observe his correspondence with Paula Broadwell.

It also illustrates the necessity for broader protections from state surveillance: if the nation's top intelligence official can so whimsically come under the federal government's watchful eye, what security do "We, the people" have against government intrusion?

While the Electronic Communications Privacy Act of 1986 (ECPA) once furnished such insulation, its outmoded provisions and obsolete restrictions fail to address contemporary threats to privacy and free speech. Reforming ECPA to require a judicial warrant to justify searches and seizures of the content of electronic communications will minimize civil liberties violations in the course of federal investigations.

The circumstances of Petraeus' well-publicized scandal demonstrate how our government may casually obtain private information under the current legislative framework.  As reported by various news outlets, the FBI investigation of Petraeus began after socialite Jill Kelly complained to an acquaintance at the FBI about receiving anonymous, harassing emails.  Jill Kelly's federal friend suggested an investigation to his superiors, and a superfluous cyber-stalking investigation revealed that Paula Broadwell, Petraeus' biographer and mistress, had sent Kelly incendiary emails to discourage her friendship with Petraeus.

The FBI subsequently achieved access to Broadwell's Gmail account and discovered her relationship with Petraeus through unsent messages in a drafts folder.  Though the saga continues on, these details alone suggest a lack of privacy in one of our most prominent means of personal communication.

Stuck in the WebAlthough ECPA insulates the content of some electronic communications from unreasonable search and seizure, it fails to afford the protection necessary to preserve modern privacy rights.  The Stored Communications Act (SCA) requires merely an administrative subpoena for government entities to ascertain the identity, address, bank account number, and other "information pertaining to a subscriber...or customer" of telecommunications services like Verizon or Google.

Administrative subpoenas allow interested agencies to act as arbiters of their own cause, creating conflicts of interest and increasing the potential for misguided investigations such as the Broadwell probe.  The FBI's extensive investigation of a minimal threat indicates both the agency's imprudence and its capacity to collect information it should not possess.  The questionable conduct of such a high-profile investigation signifies the importance of independent review and broader electronic privacy protection.

While the SCA provides protection for the content of electronic communications, even these provisions fail to deter government intrusion.  The SCA requires a warrant to search the content of electronic communications "in electronic storage...for one hundred and eighty days or less".  However, the Department of Justice (DOJ) interpretation of the SCA permits the search and seizure of opened electronic files and messages.

Furthermore, as in the Broadwell investigation, the DOJ claims that a mere subpoena authorizes access to a subject's draft folder, which may include complete messages and other data that would otherwise be classified as protected "content."  DOJ also implausibly reasons that we lose the reasonable expectation of privacy to our electronic messages as soon as we access them.

Yet the sheer prevalence of electronic correspondence in our private and professional lives merits greater protections for these communications.  How can we be secure when the organization of our email determines the extent of our privacy? In compliance with the Constitution and modern notions of privacy, the secret surveillance of persons within the US must remain subject to judicial review.

Considering the  implications of Petraeus scandal for domestic surveillance policy, it seems crucial for the future of privacy rights that we each voice support for all peoples' privacy rights.  Also, visit BORDC's action menu for information about how you can join the struggle to restore privacy.

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