Even 4-star generals vulnerable to email snoops
BY CAROL MARIN firstname.lastname@example.org November 16, 2012 9:26PM
FILE - In this June 23, 2011 file photo, then-CIA Director-desigate Gen. David Petraeus testifies on Capitol Hill in Washington. Petraeus has resigned because of an extramarital affair. (AP Photo/Cliff Owen, File)
Updated: December 19, 2012 1:18PM
I’m “All In” with Leroy Jethro Gibbs. Like millions of viewers, I have followed his action-filled fictional career.
And why not?
Boss of TV’s outrageously popular “NCIS” series, Gibbs is a born leader. Ruggedly handsome, smart, and charismatic, he commands a team of good guys who do battle with the bad guys.
But that same glowing description also fits a real-life action figure. David Petraeus, the former four-star general turned CIA head, is brainy, disciplined, dedicated to his country. And an inspiration to his troops. Or at least he was until steamy email exchanges with his buff biographer, Paula Broadwell, rendered him unemployed and tarnished.
There are many lessons to be taken away from the embarrassing national soap opera now known as the Petraeus affair. But the one I would focus on has to do with privacy.
Though we don’t know the specific legal route by which the FBI obtained all the online communications in its investigation, we do know a lot about the current law. And the very low bar it sets for the invasion of our privacy.
The statute that governs such searches is the 1986 Electronic Privacy Law. It was written before the World Wide Web came to dominate our lives. And before our online data lived in virtual perpetuity on central servers. Or up in an iCloud.
Under the law, “relevance” rather than the higher standard of “probable cause” allows the FBI to subpoena the information. No judge is involved. No search warrant is required. It’s essentially a no-muss, no-fuss procedure in which the person being investigated may never even be notified.
If the Cold War brought us the National Security state, 9/11 has given us what has been dubbed the Surveillance state. And while domestic terrorism has been its impetus, there are reasons to be concerned about improper, unreasonable, even frivolous searches of citizens.
The Digital Due Process Coalition, representing a wide group of tech firms, information providers and advocacy organizations, is now fighting to enact federal privacy protections governing our digital transmissions from cellphones to emails to electronic file storage.
The Petraeus affair, in which no demonstrable breach of national security has thus far been revealed, may well serve as the latest example of why this is urgently necessary.
“This scandal illustrates why e-searches are so invasive,” said ACLU staff attorney Catherine Crump by phone from New York on Friday. “We need clear and rigorous standards for FBI agents given the sensitive material we store in our email boxes.”
Neither the Bush nor the Obama administrations have shown any inclination to set higher standards or to impose more oversight on the reach of law enforcement.
In truth, the American public hasn’t risen up to demand such protections.
After all, at “NCIS,” Gibbs’ agents can — without a judge or warrant — track a bad guy’s cellphone, bank accounts and location with just a few keystrokes. And deliver him to justice.
Fortunately for them, because it’s fiction, they never get it wrong.