The Petraeus Case and the 4th Amendment

November 16, 2012 by 11 Comments

Much has already been written and said about the scandal that ended the career of David Petraeus. The infidelity is by far the least interesting aspect of the story. Far more interesting is how the story intersects with the 4th Amendment and the government’s ability to access our private communications. Glenn Greenwald is, predictably, all over that part of the story:

So all based on a handful of rather unremarkable emails sent to a woman fortunate enough to have a friend at the FBI, the FBI traced all of Broadwell’s physical locations, learned of all the accounts she uses, ended up reading all of her emails, investigated the identity of her anonymous lover (who turned out to be Petraeus), and then possibly read his emails as well. They dug around in all of this without any evidence of any real crime – at most, they had a case of “cyber-harassment” more benign than what regularly appears in my email inbox and that of countless of other people – and, in large part, without the need for any warrant from a court…

So not only did the FBI – again, all without any real evidence of a crime – trace the locations and identity of Broadwell and Petreaus, and read through Broadwell’s emails (and possibly Petraeus’), but they also got their hands on and read through 20,000-30,000 pages of emails between Gen. Allen and Kelley.

This is a surveillance state run amok. It also highlights how any remnants of internet anonymity have been all but obliterated by the union between the state and technology companies.

But, as unwarranted and invasive as this all is, there is some sweet justice in having the stars of America’s national security state destroyed by the very surveillance system which they implemented and over which they preside. As Trevor Timm of the Electronic Frontier Foundation put it this morning: “Who knew the key to stopping the Surveillance State was to just wait until it got so big that it ate itself?”

Or as the brilliant David Feldman put it on Facebook:

The FBI is our scouring the CIA chief’s emails right now. Color me Old School but I think the guy tapping my phone is entitled to privacy.

And as AP reports, the FBI didn’t even need to get a warrant to access most of the emails of everyone involved:

Under the 1986 Electronic Communications Privacy Act, federal authorities need only a subpoena approved by a federal prosecutor — not a judge — to obtain electronic messages that are six months old or older. To get more recent communications, a warrant from a judge is required. This is a higher standard that requires proof of probable cause that a crime is being committed.

And as Greenwald notes, all this happened only because one person received a few rude emails and had a friend at the FBI who was willing to find out who sent them (turns out, it was the woman having an affair with Petraeus — and the woman doing the complaining was apparently having an affair with another four-star general).

Filed Under: Civil Liberties, Privacy 11 Comments
About Ed Brayton

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

  • baal

    “The FBI is our scouring the CIA chief’s emails right now.”

    This is sadly about the only way we’re going to get even remotely respectable privacy back.

  • Chiroptera

    Color me Old School but I think the guy tapping my phone is entitled to privacy.

    While I see his point, I think that the other side of the point is

    the guy tapping my phone is entitled to just as much privacy as I have.

  • http://peopleofpublictransport.wordpress.com Zinc Avenger (Sarcasm Tags 3.0 Compliant)

    Silly peons. The lesson here is that Constitutional protections are for Government employees and politicians, not you.

  • freebird

    I think we’ve reached the Boat Point of this story, which is the point at which the entire thing has become so ridiculous that the only rational solution remaining is to gather everyone even tangentially involved, put them on a boat, sail it out into the middle of the Pacific, and sink it. Sink it deep.

  • noastronomer

    “The FBI is our [sic] scouring the CIA chief’s emails right now.”

    Is that a Bad Thing or a Good Thing? I can’t tell.

    Mike.

  • Reginald Selkirk

    The infidelity is by far the least interesting aspect of the story.

    Unless someone can get their hands on some pictures.

  • dustinarand

    Just to play devil’s advocate, all of these people were either high ranking military/intelligence or had security clearance because they worked with people in the military or intelligence community. Couldn’t you make the argument that people who apply for a security clearance (effective asking their government to give them access to state secrets) sacrifice some of their privacy in the process, if only because the government needs to be able to know that this individual is still trustworthy? And you don’t need to commit a crime to demonstrate untrustworthiness. Having an extramarital affair pretty much qualifies, in addition to providing our enemies leverage over you in terms of blackmailing you with threats to reveal your affair if you don’t turn over state secrets.

    Private individuals with no security clearance should never be subject to this kind of surveillance without a warrant and probable cause of criminal activity, but for people with a security clearance it’s a whole different story, especially as you move higher up the ranks.

  • F

    dustinarand

    You can make that argument, but that’s not how it works, and also not how it played out in this case. Gov agencies can snoop just about anything they want with no warrant or subpoena, and when the do ask for a court order, it is rubber-stamped, over-broad, and apparently sometimes issued after the fact. Further, those complying with such request frequently dump way more than what was asked for, and this extra information is hardly refused.

    In the Petraeus case, the FBI agents involved couldn’t even find a good reason to pursue an i9nvestigation, said so, then went ahead anyway. Mind you, this amazing crime was brought to their attention by an agent who was a friend/acquaintance of the annoyed woman – no proper channels, etc. – and who was later found to be sending shirtless pictures of himself to the same woman. The whole thing is a pantload.

    —–

    The truly interesting things here are the gov exposing its bullshit privacy and civil rights abuses, one more exposure of the kinds of idiots who are involved in “national security” (theater), and the exposure of Petraeus for the hypocritical religion-peddling douchebong he is. The more important things are the first two.

  • Draken

    The FBI is our scouring the CIA chief’s emails right now. Color me Old School but I think the guy tapping my phone is entitled to privacy.

    Disagree. As soon as you become a spook for, or obtain a leading position in, one of the world’s most powerful secret agencies, with a almost blanket permission to observe, kidnap and torture people in your country and abroad, your automatically become subject to intensified scrutiny. Unless you want to end up with another Cambridge Five.

    To hell with the privacy of the privileged goons who would piss in your privacy if it were an open wound.

  • matty1

    <blockquote

    >The FBI is our scouring the CIA chief’s emails right now. Color me Old School but I think the guy tapping my phone is entitled to privacy.

    Disagree. As soon as you become a spook for, or obtain a leading position in, one of the world’s most powerful secret agencies, with a almost blanket permission to observe, kidnap and torture people in your country and abroad, your automatically become subject to intensified scrutiny. Unless you want to end up with another Cambridge Five.

    Does no one get sarcasm any more?

  • harold

    Just to play devil’s advocate, all of these people were either high ranking military/intelligence or had security clearance because they worked with people in the military or intelligence community.

    This is a serious question – is this technically true? Did Paula Broadwell have a serious level of security clearance?

    She has “important sounding” but meaningless pseudo-security credentials – West point graduate doing military-related graduate school work. But actually she’s just the perpetual student wife of a radiologist, writing a gushy book about a celebrity general under the fig leaf of “doing a dissertation”, who started sleeping with the general, and feuding with a rival “general groupie” type.

    Whether we should have the CIA, and whether the CIA director should have his or her sex life scrutinized, are interesting questions, but the main thing that bothers me here is that clearly legal and trivial activities by Broadwell – and to say that there doesn’t seem to be a shred of evidence that she knows any important national security secrets or is doing espionage for a foreign power is a gross understatement – could trigger all of this.