A Scandalous Lack of Privacy

A powerful man sleeping with a younger woman outside the bounds of matrimony may not be uncommon, but when revealed, it inevitably produces a scandal. In the case of the adultery revelations about former CIA Director David Petraeus, however, the banal, tawdry sex scandal is masking a much deeper one. A great deal of intimate personal information has been revealed to the public based on an FBI investigation, despite a rather notable lack of underlying activity that can plausibly be called criminal. There's no particular reason anybody but David Petraeus's wife should care about his sexual improprieties, but we should all care about how easy it is for government officials and employers to invade the privacy of online communications.

Admittedly, major public officials like Petraeus have a lesser expectation of privacy, although even these trends have gone to far. The argument that the adultery of the CIA director is relevant because of the possibility of blackmail seems like a massive stretch, comparable to the way in which "hypocrisy" can serve as an all-purpose excuse for the press to examine the consensual sex lives of anybody seeking public office. (It's not a coincidence that the hypothetical possibility for blackmail was used as a pretext to discriminate against gays and lesbians).

But even if we leave the violations of Petraeus's privacy aside as a special case, the revelations that ended his CIA career are still disturbing. There is almost certainly no justification for the email accounts of Paula Broadwell—which revealed her affair with Petraeus—to have been examined by the FBI in the first place. If initial reports are correct, Broadwell's emails to Jill Kelley were paranoid and catty but did not rise to any plausible legal standard of threat or harassment. The FBI investigation seems to have proceeded based on the personal and political agendas of the FBI agent who fielded Kelley's complaint, not any credible evidence of criminal activity on the part of Broadwell.

The fishing expedition into Broadwell's emails should, on its face, be considered a violation of the Fourth Amendment—while the FBI apparently had a search warrant, it's hard to see how this warrant was obtained with the "probable cause" the Constitution requires. But the real scandal here is what's currently considered to be legal. After a 180-day period has elapsed, private emails are currently considered public and require only a subpeona to a provider to be accessed. Even worse, the government contends that even inside the 180-day window opened emails carry no expectation of privacy. As Adam Serwer of Mother Jones puts it, "If you think the feds need a warrant to start looking at your email, you're dead wrong." The standards created by the The Electronic Communications Privacy Act from a time when most emails were downloaded rather than stored on a third-party server remain in place. In the current technological context, these standards are privacy shredding.

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 Fish. 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.

If the FBI can compel the director to resign based on an FBI investigation that involved no plausible claim of underlying criminal activity, we are all vulnerable. This case should be a wake-up call for all of us: our privacy rights have become increasingly, and unnecessarily, diminished.

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