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The Police State and the Private: Electronic Communications Edition

[ 74 ] November 16, 2012 |

Motivated in part by how blithely some commenters in this thread seemed to accept the various pretexts used to eliminate any expectation of privacy from private electronic communications (“Of course the sexual life of senior government employees should be monitored because of the blackmail, giving the FBI that power has always worked out well!   But she sent some unkind emails!  They drove to work on a public road!”), I have a piece up about the drastic reforms that are obviously necessary:

The invasions of privacy in this case make the need for major changes in the law clear. First of all, the federal courts should make clear that there is the same Fourth Amendment right to privacy in electronic communication that there is in telephone calls. The government should have access to emails only after obtaining a warrant after the showing of probably cause. Cases like the investigation of Broadwell’s email—in which “evidence” of wrongdoing that would not be considered adequate cause if applied to snail mail was enough to obtain a warrant—should not go forward.

And much more needs to be done to protect the privacy of employees. A recent decision by the Supreme Court of Canada provides a valuable road map. “Canadians may therefore reasonably expect privacy in the information contained [workplace] computers, at least where personal use is permitted or reasonably expected,” wrote Justice Morris Day. This is the right approach. The Fourth Amendment should give government employees a presumptive expectation of privacy in their electronic communications, including those on workplace computers. And the privacy of private employees should have a similar expectation of privacy established by federal statute. The fact that emails and text messages are stored on third-party servers should not be used to immolate the privacy of individuals.

See also Julian Sanchez.

Comments (74)

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  1. Murc says:

    First of all, the federal courts should make clear that there is the same Fourth Amendment right to privacy in electronic communication that there is in telephone calls.

    Unless I’m mistaken, I believe the courts have in fact made clear the exact opposite of this.

    Sidebar: I think the Fourth Amendment is worded really poorly. Not entirely the founders fault; they lived in a pre-industrial society. But the word “unreasonable” there is a giant weak point. All you have to do is create an environment in which its “reasonable” to expect no privacy whatsoever and you’ve gotten around it. It can be gutted the same way the Commerce Clause has been, although in this case it would be a bad rather than good thing.

    I’ve seen people make not-insane arguments that we don’t even have a reasonable expectation of privacy in our own homes anymore, because technology that can see through walls in various ways has gotten relatively widespread and affordable.

    • Hogan says:

      “Reasonable” and “plausible” are not the same thing. I could make an equivalent argument that we don’t have a reasonable expectation of survival any more because the technology of killing people has advanced so much and been distributed so widely, but I wouldn’t expect anyone to draw any constitutional or policy conclusions (e.g., maybe murder isn’t such a big deal) from that.

      • John says:

        But that argument is not the same outside of the Fourth Amendment context. There are a lot of moving parts to the Fourth Amendment, depending on what aspect the Justices focus on, they can evolve its meaning. Scalia sort of started this shift in focus from the Warrant Clause to this mushy reasonableness idea. Also, don’t forget the “search” aspect. No Fourth Amendment violation if it’s not technically a search-plenty of room for chicanery there.

  2. Derelict says:

    The problem here goes well beyond emails. Privacy as a right has suffered a steady erosion over the last 35 years. Its decline began as an effort to further the drug wars, continued as various rightwing authoritarians (such as Bork) declared that tghe right doesn’t exist because it’s not enumerated in the Constitution, and was utterly demolished over the last 10 years in the war on terror.

    Today we have arrived at a point where the privacy of emails is (or should be) the least of our concerns. ALL of our 4th Amendment protections have been removed, and the “right to privacy” no longer exists in any meaningful or even functional way.

  3. Manta says:

    Scott, it seems that the main point of my objections to your post were not clear, so let me rephrase them

    1) your claims of overreach by the FBI are unsupported by the facts; by that I don’t mean that they are wrong, but only that “anonymous governemnt sources says the investigation that implicated a powerful government man is shaky” is not a good basis on which to debate anything

    2) even assuming what you claim is true, still it does not imply that what the FBI did was illegal (whether it *should* be illegal is another matter): but you seem to concede this point in your post

    3) The Obama administration (prosecuting the policies of the Bush’s one) is the culprit for that government overreach: if the head of CIA was the victim of government ignoring citizen’s privacy, he amply deserved it: see also point 2)

    4) It remains the question: should be what the FBI did illegal? And the results are evidence for a “No” answer: the “victim” were: Petraeus (see point 3) and his hagiographer: that the latter had her reputation destroyed is a GOOD thing.
    Of course, there are many other cases that point in the opposite direction, but this is not one of them.

    • Manta says:

      In other words: I agree that there should be more protection for privacy, but P. fall from grace is a contra evidence tho that proposition.

    • his hagiographer: that the latter had her reputation destroyed is a GOOD thing

      There are a couple of connotations of reputation here, at least one of which is none of my business.

      • Manta says:

        Not really: he pretended to be objective (even a scholar): in this case, the fact that she was having sex with P. is very relevant to her reputation as a journalist.

        • When did she pretend to be objective?

        • laura says:

          Paula Broadwell’s AND Petraeus’ fall from grace are both well-deserved (his for violating the military’s code of ethics and opening himself up to blackmail charges, hers for being an incredibly shoddy journalist and scholar. Also, the expectation of privacy when sending anonymous harrassing emails is not high on my list of civil liberties concerns.)

          Doesn’t change the fact that the affair should not have been discovered. What the FBI did — effectively letting a friend of the recipient of the emails decide how far to push the investigation — was extremely poor practice and completely rife for abuse.

          imo, the FBI should have needed to get a warrant just to trace the emails. A judge, not Which-one-is-Fred, should have made that call, which doesn’t appear to be what happened. Then a second warrant (with a much stricter standard) should have been required to actually spy on the contents of Broadwell’s email. From my reading it’s not clear if this warrant was obtained or not — but I think the evidence is clear that it either wasn’t or shouldn’t have been granted. That’s where the abuse lies.

          • Richard says:

            “imo, the FBI should have needed to get a warrant just to trace the emails. A judge, not Which-one-is-Fred, should have made that call, which doesn’t appear to be what happened.”

            Under current law, that is clearly not required. The FBI can use administrative subpoenas, in effect subpoenas which it issues itself, and get the info to determine the identity of the person who sent the anonymous emails. Whether a judge’s consent should be required is a different question.

            “Then a second warrant (with a much stricter standard) should have been required to actually spy on the contents of Broadwell’s email. From my reading it’s not clear if this warrant was obtained or not — but I think the evidence is clear that it either wasn’t or shouldn’t have been granted. That’s where the abuse lies”

            According to the WSJ, a warrant was obtained to look at Broadwell’s emails. Eventually we’ll find out whether this happened or not and, if so, what was put in the affidavit in support of issuance of the warrant.

            • laura says:

              Thanks. I didn’t read the WSJ piece so I didn’t know they had reported that a warrant to open Broadwell’s email had been issued.

              I should also be clear that the first part was an opinion on what the law *should* be. For the FBI, even to trace a harrassing email *should* require a judge’s consent imo (because Kelley’s friend was obviously not an unbiassed party), but I’m aware that under current law this is not required and therefore nothing illegal happened at that stage.

    • John says:

      Your 3rd point is similar to the argument I’ve been making on various blogs. I think the argument that Petraeus needs some sort of protection from the state is facile, because as CIA director he is the state or at least a strong part of it.

      • There’s some poetry to it, but it helps ensure that people who aspire to government office are inhuman.

        • Manta says:

          No, it helps ensure that the people running the government take citizen’s privacy seriously. Live by the sword, die by the sword.

      • david mizner says:

        Why the hell does it matter that “he is the state?” Poetic justice aside, he’s no less entitled to constitutional protections, or do you think the FBI could summarily execute him?

        • Manta says:

          If the government’s position is that it has the authority to summarily execute people, it’s only fair that government higher ranking official get summarily executed.

          If they don’t like the invasion of privacy, they should change the policy BEFORE one of them is victim of the system they created.

    • Richard says:

      I just find it hard to accept the argument that the head of the CIA is entitled to any privacy rights in his electronic communications. I have no problem establishing a privacy right for an employee’s electronic communications that aren’t work related but not for the head of the CIA.

      And in general, Manta is right. It appears that everything the FBI did was legal under current law. Moreover, if the WSJ is to be believed, they got a warrant to examine Broadwell’s emails so some judge had to agree that there was probable cause that a crime was committed, not just salacious curiosity by some FBI underling.

      This is just a very bad set of facts to support an argument that privacy rights should be extended.

      • Manta says:

        But in this case the communications *were* work-related: she was his biographer. The fact that they decided to mix work and sex and to deceive the public is not an excuse.

      • Scott Lemieux says:

        they got a warrant to examine Broadwell’s emails so some judge had to agree that there was probable cause that a crime was committed

        Um, no. Real 4th Amendment standards don’t apply to emails; that’s the problem.

        • Richard says:

          According to the WSJ, they got Broadwell’s identity and then applied to district court for a search warrant. And they didnt get an administrative subpoena or FISA warrant In order to get a district court warrant directed at a third pary, even for emails, my understanding is that you have to show probable cause. Scott, I haven’t practiced criminal law for many, many years so I’m no expert on this (and you may have much more knowledge than me) but can you cite me to a case or article holding that district court search warrants for electronic mail don’t need probable cause of a crime being committed? And what the standard is?

          • Richard says:

            And just to make clear, the FBI seems to have used administrative subpoenas or maybe just requests to IP servers to obtain the info that led them to the conclusion that Broadwell was the anonymous person sending the emails. But that information did not include the content of the emails. My understanding is that they were only able to see the content of her emails after they got the district court warrant and that, in order to see the content of emails, you need to convince a federal court that there is probable cause a crime has been committed.

    • Scott Lemieux says:

      your claims of overreach by the FBI are unsupported by the facts

      The facts we currently know suggest there was a massive overreach. It is theoretically possible that the FBI, suddenly discovering a scrupulous interest in privacy, isn’t leaking emails that would justify the search. But I sure know how I’m betting.


      even assuming what you claim is true, still it does not imply that what the FBI did was illegal

      Well, I believe is is quite clearly illegal under the Fourth Amendment. Whether the courts will see it that way is a different issue.

      The Obama administration (prosecuting the policies of the Bush’s one) is the culprit for that government overreach: if the head of CIA was the victim of government ignoring citizen’s privacy, he amply deserved it: see also point 2

      Your point being?

      that the latter had her reputation destroyed is a GOOD thing.

      Fascinating. So if someone write a less-than-hard-hitting book, then we’re justified searching through their private communications on the basis of nothing? I’m not following you down the authoritarian road, thanks, and not only do I reject the means I reject the ends.

      • Manta says:

        About 1) we will have to agree to disagree until we have some facts.

        About 2), since it’s the court’s job to determine how laws are to be interpreted, I think we agree

        About 3), my point is that you cannot go around pushing for privacy-destroying interpretations of the law, and then complain when those interpretations are used against you

        About 4): the problem is NOT that the book was “less than hard hitting”: the problem is that by not telling people that they were lovers she gave to it a veneer of credibility than it did not deserve.

      • John says:

        If the courts say it’s ok under the Fourth Amendment, then it’s not illegal. Of course I disagree, but I subscribe to legal realism.

        • Richard says:

          My understanding is that they got a complaint of anonymous threats being made over the internet. They looked through the emails of the complainant (with her permission of course) and determined (1) that the threats, while a little creepy, did not violate any law but (2) there was evidence of unauthorized access and dissemination of confidential information which was arguably against the law. They determined the identity of the person making the threats and then got a search warrant allowing them to look through all her electronic communications. If that is what happened, I simply don’t see how that was overreaching or illegal.

          Of course, all the facts are based on newspapaper articles and anonymous sources so its possible that something else occurred

          • John says:

            Right. I read that too. Probable cause and a search warrant for emails, so I really don’t know what Scott is talking about

          • Holden Pattern says:

            Fun fact: people get anonymous threats over the internet all the time. Very very few of them get the FBI interested. The abuse of LEO power is another fun part of the ongoing shitshow that our elites have been putting on for us.

            • Richard says:

              But here it was anonymous threats coupled with knowledge of the comings and goings of high ranking officials in the CIA or Army. I just dont have a problem with the FBI under these facts finding out the identity of the person sending the emails and then getting a warrant (if that is indeed what happened). I would have a real problem if they examined Broadwell’s emails without a warrant.

      • Jesse Levine says:

        I’m sure you’ve been waiting for my approval of your posts. You got it !

      • Manta says:

        Actually, I am a bit puzzled, because you seem to mix to different questions: what the law (as intepreted by the courts) is, and what it should be.

        About “what the law is”, I think we can agree that “pretty shitty” is a good description: in particular, what the FBI did seems legal.

        About “what it should be”, we look at the consequences: and in this case, the consequences were good.

    • JazzBumpa says:

      I’ve read the 2:37 comment twice now,and have absolutely no idea what it means.

      How in the hell can the identity of the victims effect the legality status of any action?

      If I were the victim, what the FBI did was wrong, but because it’s P4, all is OK ?!?

      This is a bad game of resultitis.

  4. Ken Houghton says:

    “Canadians may therefore reasonably expect privacy in the information contained [workplace] computers, at least where personal use is permitted or reasonably expected,” wrote Justice Morris Day.

    I was wondering what he is doing these days.

  5. Rick Santorum's Leaky Faucet says:

    I’m no police state apologist, but I’m just not seeing how the director of the CIA has the right to privacy in this contexts, especially if he sent these emails at his office. I’m talking specifically about senior government officials, not any government employee. The director of the CIA, in a sense, shouldn’t expect privacy from the state because,
    in a sense,’he is The State, a very shadowy embodiment of it.

  6. Pithlord says:

    I think you mean Justice Morris Fish

  7. Rick Santorum's Leaky Faucet says:

    I think you mean a presumption of privacy when they’re engaged in something personal as in work related. Otherwise I can’t agree.

    • Manta says:

      Are the communication between the head of CIA and his biographer personal or work-related? It’s pretty clear that cultivating the press was an important part of P.’s job (albeit not an official one).

      • John says:

        I don’t know how to resolve that one. But both parties here were sophisticated-General and then CIA director, Broadwell a former military officer. She knew who he was and where he worked. If Petraeus has no expectation of privacy I feel like that rubs off on her if she knows who he is and communicates with him while he’s at work or on official trips and whatnot.

  8. Njorl says:

    The Fourth Amendment should give government employees a presumptive expectation of privacy in their electronic communications, including those on workplace computers.

    No, it shouldn’t. 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.

    • John says:

      Right, but it’s much more fun to write a sanctimonious blog post than to read up on Fourth Amendment jurisprudence.

    • Scott Lemieux says:

      A presumption is not an absolute right, of course. Monitoring for those purposes is presumably reasonable and justifiable.

      • Anonymous says:

        But monitoring for these purposes means you are monitoring all communications all of the time.

        • Richard says:

          I dont get how you can have a presumption of privacy and then monitor the emails. If you have a presumption of privacy, monitoring is not going to be allowed unless you meet whatever the threshold is for rebutting the presumption of privacy.

          • Njorl says:

            You can’t have a presumption of privacy. It would be deceptive to tell employees that they have a presumption of privacy except for circumstances which warrant monitoring when all circumstances warrant monitoring. In almost all government jobs which involve information handling, monitoring of employee email will be warranted.

    • Murc says:

      I can’t mail my friend every social security number of every American in an unabtrusive envelope.

      You can. This is entirely doable and has been for literally decades.

      I can’t call up a buddy and describe the complete plans of a stealth bomber in a 15 minute phone call.

      Verbally? No. But there are ways to transmit that data over a person-to-person phone connection in fifteen minutes or less that don’t involve email in any way.

      The government not only has a right to monitor electronic communications of its employees, but a duty to do so.

      Interesting shift. You seem to be conflating what the standard should be for government employees with what it should be for everyone.

      • Njorl says:

        Verbally? No. But there are ways to transmit that data over a person-to-person phone connection in fifteen minutes or less that don’t involve email in any way.

        Phones in secure areas have low-pass filters which eliminate the possibility of high freqeuncy data transmission. Many phone lines won’t even work with a 14.4 KBaud modem.

        Lines can also be monitored for higher frequencies without monitoring the verbal content of a call. You can catch someone stealing data over the phone without violating privacy rights of people making ordinary calls.

    • Holden Pattern says:

      This is an absolutely insane point of view, but one well suited to a vicious sort of authoritarianism. Also:

      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.

      That is a bizarre mix of patently false and oddly misleading. Writeable DVDs can carry ~4 Gigabytes of data. I have a 32 Gig flash drive sitting on my desk right now, which is smaller than the finger I’m extending toward the quoted argument. Rough estimate: 1 Gig = 500,000 pages of text. Figure maybe 250 names + SSNs per page (probably far more with compression), that gets you about 50M Name/SSN pairs per DVD. So, 6 DVDs gets you done (if you were super-sneaky, you could fake up some Netflix envelopes), or one 32GB flash drive, or hell, just buy a SSD and mail it in a padded envelope. How many completely innocuous packages far larger than that get sent through the mail all the time?

      Never mind that someone serious about the kind of stuff you’re talking about won’t use a fucking GMAIL account; you’d set up an one-time SSH-only FTP drop somewhere unaccountable, with the underlying data also encrypted, maybe a couple times.

      • Holden Pattern says:

        I’m going to back away from the “insane” part of my comment, there, because on a couple rereadings, Njorl is clearly speaking only of government employees, and in certain cases (not all), it may be reasonable for them to have reduced expectations of privacy. The rest of the comment stands.

      • Njorl says:

        A DVD or a thumbdrive is not an unobtrusive envelope. Any attempt to mail such things from where I work would be intercepted and examined.

        • Holden Pattern says:

          I see, so it’s not possible to secret a thumbdrive (or the very very small chip that actually has the memory) in something that you walk in and out with every day? Do they do skin-out searches?

          And a DVD can be slipped into any number of properly prepared rigid items like book covers or briefcase frames.

          I guess what you’re proposing can stop the stupid or lazy, and that’s reasonable, but the ONLY people it will stop would be the stupid or lazy.

          • Njorl says:

            They don’t routinely search people when they leave, but they do have the right to do so. They do not need to get a warrant. Anyone who enters the building signs a waiver agreeing to be searched.

            I guess what you’re proposing can stop the stupid or lazy, and that’s reasonable, but the ONLY people it will stop would be the stupid or lazy.

            And locks only keep honest people out of your house.

            That’s how most of security works. If you deter people who do not want to invest a lot of time and effort into becoming criminals, you have deterred the vast majority of potential security threats.

        • NonyNony says:

          A DVD or a thumbdrive is not an unobtrusive envelope. Any attempt to mail such things from where I work would be intercepted and examined.

          How about a 32 GB micro-SD card? They’re the size of a fingernail and almost as thick. You could easily include a number of them in a single envelope and unless you were specifically screening for them you’d never notice. Even if you were screening there’s a good chance that an envelope with one in it would just fly by.

          I can’t imagine being a security screener at an actual high-security facility these days. You could quite easily walk out the door with gigs of data secreted in your sock or in a fold in your wallet.

          • Holden Pattern says:

            I didn’t even thing of those, because I don’t use them. But yeah, that.

          • Njorl says:

            They have the right to search everyone who leaves the building. They have the right to examine and decrypt any electronic media they find.

            Someone who is willing to carry physical evidence of their crime on their person is taking a greater risk than someone who transfers data electronically. People who are not professional criminals are more easily deterred from taking such risks.

            • Rhino says:

              Really? when was the last time they searched you? And would that search have found, for example, a fingernail sized data chip glued to your taint?

  9. afeman says:

    Something I don’t see addressed much is that getting even the lowest level security clearance entails explicitly signing away a lot of privacy, and an illicit affair is precisely the sort of thing that evaluators frown upon along with general emotional and financial instability. There is no need to appeal to some hazy notion of P having no right to privacy from the state he a part of — getting your dirty laundry aired (not publicly, though) is a formal part of the deal. In principle this has little to do with morality (however defined) within the law; they’re not supposed to care if you have swinger parties in your BSDM dungeon just so long as you tell them about it.

    • afeman says:

      Or in your M&M dungeon, for that matter.

    • JL says:

      This. I’ve had a (low-level) security clearance. You’re agreeing to a loss of privacy in certain ways and contexts when you sign up. I think that way too many jobs require a security clearance – they are really invasive and we classify a lot of random stuff – but I would assume that “CIA director” requires a top-grade one that involves a horribly invasive investigation among other things. And a requirement that you report any potential breaches or compromises to your facility security officer.

      In general, yes, I would support greater privacy rights for electronic communications.

  10. david mizner says:

    And there’s actually a chance for reform on privacy issues (unlike on most other civil liberties issues,) at least judging by the poll numbers.

    http://epic.org/privacy/survey/

  11. Glenn says:

    Not sure why you think that the ability of the FBI to get a warrant represents an inadequacy of Fourth Amendment legal principles, as opposed to the usual situation of law enforcement finding a judge who doesn’t have a particularly high bar for “probable cause.”

  12. advocatethis says:

    The “third party” aspect interests me here. As I recall from when I worked at the USPS, investigators could not have access to mail in a PO box without a warrant, neither could they stop a carrier on the street and ask to see a piece of mail, or even ask a letter carrier to confirm the address of somebody. If they asked, we were instructed to ask for a warrant. This isn’t exactly analagous to accessing yahoo or gmail servers for stored email, but it seems close enough that it should carry some precedential weight.

  13. [...] like they’re castrating you or something! •Thoughts on the fact the FBI can just spy on anyone, regardless of warrant or probable cause. The possibility someone who was hot for one of the women [...]

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