The Petraeus Affair, the Police, and Your Privacy
Time to rein in invasive police email snooping.
Ronald Bailey | November 20, 2012 REASON
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.
HERE IS THE VIEW FROM THE CORPORATE LAWYERS:
This video clip, posted by RT almost two years ago, has had only 767 views as I write this. How did Americans become so docile, so trusting of government, the US media so vacuous, that government agencies at all levels can spy on any of us at will?ReplyDelete
Have governmental police organizations become so virtuous that we trust them implicitly? Too many high minded idealized cop shows? Or is this the price we pay for government education that results in such depressing statistics as 52% of Philadelphians being functional illiterates?
52%? good griefDelete
I would be interested in seeing the Demographics on that. I just wonder if the illiteracy rate is as high on 18 yr olds as on, say, 40 yr olds? 60 yr olds?Delete
In other words, is any progress being made?
Anyone who would 'automatically' assume the government is telling the truth on a particular subject is dense or criminally credulous.
If you have nothing to hide, what is the problem?ReplyDelete
If you have nowhere to hide it's a problem.Delete
If you have nothing to hide, what is the problem?Delete
Classic EDS behavior (Ethanol Deranged Syndrome)
It seems to be a long term condition, EDS. I recall way back when Ruf was supporting a National ID Card and assorted checks. He argued then, as now, "If you have nothing to hide, what is the problem?"Delete
I don't know that there is any cure for it, it may be irreversible.
Maybe you should read the post again. :)Delete
Deuce got the joke, but you seem to have missed it.Delete
I got the joke but that is what you used to argue.Delete
Some internet service provider/e-mail carrier should come up with a program that does not store stuff. That would at least keep The Powers from searching through one's past.ReplyDelete
An ISP with alzheimer's. :)Delete
On November 20, 2012 at 12:54 pm, Flyoverman said:
If we polygraphed these people the stylus would fly off the the machine!
It’d be like an EKG on Bill Clinton in an adult book store.
Comment concerning all the lying going on that I thought funny.
Israel: Muslim students protest for Hamas in Jerusalem, until they have to flee Hamas rockets
Oh, the irony.
Video thanks to Maggie's Farm, on which I ain't gonna work no more, where there is this explanation:
Israel is a democracy, with rights of free speech, petition, and protest. The tiny number of far left Israelis are vocal and often ally with radical Arab-Israelis. In this video today, they held a protest in Jerusalem against Israel bombing Gaza. Then, they scurried away as soon as the air raid siren went off that a rocket may come in from Gaza.
Vicious attack video
Well, at least they have clothes on, San Francisco having finally passed a nudity ordinance.
They got tired of seeing all those left-wing dicks.
But Ms. Falque-Pierrotin said her tough approach was justified by the importance that the French, and Europeans more generally, attach to privacy.
“In Europe, we consider privacy a fundamental right,” she said. “That doesn’t mean it is exclusive of other rights, but economic rights are not superior to privacy.”
In the United States, she said, despite signs of a new concern about privacy in the digital age, “personal data are seen as raw material for business.”
The inquiry illustrates a new level of cooperation among the various data protection agencies in Europe, which have sometimes struggled to respond in a consistent way to the challenges of regulating global Internet companies like Google and Facebook.
Viviane Reding, vice president of the European Commission, has proposed the creation of a central authority to oversee data protection at the E.U. level. Big Internet companies have generally welcomed this approach, saying they find it difficult to deal with a welter of local regulations.
the creation of a central authority vs a welter of local regulations.
The eternal tug-of-war between top-down vs bottoms-up continues. Er, I guess I should put down that glass; that would be "bottom up." Little wonder the AI people are cranky.
Here we go -ReplyDelete
A report by Europe’s cybersecurity agency points out several flaws with the proposed ‘right to be forgotten’. A big one has to do with the challenges presented by the increasing use of aggregated data.
Nov 20, 2012 - 1:28AM PT
Why big data could sink Europe’s ‘right to be forgotten’
By David Meyer
Europe’s proposed ‘right to be forgotten’ has been the subject of intense debate, with many people arguing it’s simply not practical in the age of the internet for any data to be reliably expunged from history.
Well, add another voice to that mix. The European Network and Information Security Agency (ENISA) has published its assessment of the proposals, and the tone is sceptical to say the least. And, interestingly, one of the biggest problems ENISA has found has to do with big data.
The European Commission‘s proposals define the sort of data that has to be erased (if the data subject asks for it) in more than one way....
from the Comments -Delete
Brian Gregory Tuesday, November 20 2012
Let’s say you meet The President or Prime Minister in real life.
They say something that impacts you so greatly, it changes your entire life. Now – At the end of their life, let’s say this law is in effect… But only available to the very wealthy…
They decide they want the entire traces of their live erased to guarantee the ability to move on to an afterlife…
Since energy/electricity and memories are reflections of each-other – that ‘impact – the president had on you.. Is subsequently gone. Erased from your head, against your will. Your memory of this event, gone, because the wealthy KNEW how it would impact memories, when you remove it from ‘public records’, you remove it from private ones as well…
And the subsequent trajectory your life takes… Ever wonder why we get Deja Vu? Maybe this explains why we get it. Maybe this legislation did pass before, the world blew up when someone who did something miraculous never got a chance to be seen or heard, and died at the cross…
Maybe he’s coming back, now as we speak, to warn of making that same decision again, and the implications it means should the wrong decision be made…. Life can’t happen. Until we let go of our need to control our image.
And just accept who we are, and then have fun with wherever the journey takes us. It only becomes a cycle when we try to purge ‘public records’ of that information….
You are the mind of god.
This seems to me a novel thought, perhaps Quirk, being sort of clued into the fantastic, can help here. Or maybe he will just rage against the machine.
Anyway the last five sentences do seem oddly familiar somehow. Sorta New England Transcendentalist or something, marching to a different drummer.
This is just one of those subjects that have a hard time moving my shit-o-meter.ReplyDelete
I, absolutely, want the FBI spying on the CIA; and the CIA spying on the Generals; and Everyone spying on the President, and Congress.
I want Jamie Dimon's emails published, every day, on the front page of the NY Times, and the publisher of the NY Times emails published in the WSJ.
I want cameras on every street corner, and citizens with iphones filming the Cops.
In short, I want those assholes subjected to the same harassment that they can inflict, at will, upon the rest of us.
Recalibrate your shit-o-meter and try the next post.ReplyDelete
Happy Thanksgiving, don’t buy anything.