There’s a comment in the thread responding to my article about the Petraeus “scandal” and the privacy of electronic communications that perfectly captures the mentality that continues to whittle away at the Fourth Amendment:
No, [there] shouldn’t [be an expectation of privacy for government employees]. The potential for harm from abuse of electronic communications so dramatically exceeds the potential harm from abuse of written, verbal or telephone communications that different standards must apply. This is analogous to the 2nd amendment not protecting your right to own nuclear weapons (or, in my opinion, machine guns).
I can’t mail my friend every social security number of every American in an unabtrusive envelope. I can’t call up a buddy and describe the complete plans of a stealth bomber in a 15 minute phone call. I can do that with email.
The government not only has a right to monitor electronic communications of its employees, but a duty to do so. The government has enormous amounts of information about the US citizenry kept in trust. The privacy rights of 300 million Americans who are required by law to submit information to the government trump the privacy rights of individual employees who are not required by law to use electronic communications for their private correspondence.
Note the two key moves here. First of all, there’s the conflation of all “government employees” into a single class, all of whom are assumed to have access to large amounts of sensitive data. High-level officials at the IRS, the elementary school teacher, a secretary at the EPA — all pose the same potential threat to the public good and all presumptively surrender their privacy. On top of this, there’s a second key assumption — that systematic violations of privacy should be a first, not a last, resort. Any hypothetical threat to public interest should be met by the most intrusive means possible.
This logic is inconsistent with basic, fundamental privacy rights, and when done by the state is inconsistent with the values of the Fourth Amendment. Obviously, the expectation of privacy is not absolute. There may be cases where searches of email are justified. But not this kind of systematic monitoring. If there’s individualized suspicion, then the state should obtain a warrant based on probable cause. There may be some cases in which this is not workable. As the hypothetical suggests, there may be some instances where the privacy rights of government workers and the privacy rights of citizens clash. But for private emails to be searched without individualized suspicion, it needs to be a case involving a government official with access to highly sensitive information,* and — this is crucial! — there needs to be a showing that there’s no way of protecting the relevant public interests that doesn’t involve monitoring email. This is the appropriate way to proceed, not “ZOMG! If government employees retain any privacy rights in their private electronic communications there’s no way to prevent the guy who cleans the restrooms at the Parks Department from selling your Social Security number and bank information to the Russian Mob!!!!!!!!!!!!!”
And even if we leave aside the violations of privacy rights, this logic is highly dubious on its own terms. Stephen Holmes was really good on this point in The Matador’s Cape, but this also seems based on the Bush administration fallacy that more information is always better. But this isn’t actually true, because there are opportunity costs. The resources wasted, say, monitoring the emails of government employees suspected of non-marital sexytime because there’s a one-in-a-million chance that you’ll uncover an elaborate blackmail plot are resources that aren’t being used to, you know, try to solve actual crimes.
*Someone will undoubtedly note that Patraeus has exactly the kind of government position that justifies a lesser expectation of privacy. This is true, only his name should never have even come up, because as Nocera also notes today it’s overwhelmingly likely that the FBI had no legitimate justification for hacking Broadwell’s email, and at a minimum since no real Fourth Amendment standard applies we certainly can’t have the slightest confidence that there was legitimate justification.