Collateral damage of our surveillance state

By Julian Sanchez
November 15, 2012

As the surreal sex scandal that forced CIA Director David Petraeus’ resignation reveals another prominent general’s “flirtatious” emails, the serious scandal here may well be the breadth of the FBI’s power to launch fishing expeditions through Americans’ most intimate communications.

This investigation began in May, as we now know from copious FBI leaks, with a series of rude anonymous emails to Tampa socialite Jill Kelley. The messages criticized her cozy relationships with military officers at a local base, where she volunteers as a social planner. Although the e-mails have been described as “cat-fight stuff” rather than threats, a friend of Kelley’s at the FBI, Frederick W. Humphries II ‑ who had sent Kelley shirtless photos and was ultimately barred from the case by superiors worried he had become “obsessed” ‑ urged the bureau to investigate.

The FBI obliged ‑ apparently obtaining subpoenas for Internet Protocol logs, which allowed them to connect the sender’s anonymous Google Mail account to others accessed from the same computers, accounts that belonged to Petraeus biographer Paula Broadwell. The bureau could then subpoena guest records from hotels, tracking the WiFi networks, and confirm that they matched Broadwell’s travel history. None of this would have required judicial approval ‑ let alone a Fourth Amendment search warrant based on probable cause.

While we don’t know the investigators’ other methods, the FBI has an impressive arsenal of tools to track Broadwell’s digital footprints — all without a warrant. On a mere showing of “relevance,” they can obtain a court order for cell phone location records, providing a detailed history of her movements, as well as all people she called. Little wonder that law enforcement requests to cell providers have exploded — with a staggering 1.3 million demands for user data just last year, according to major carriers.

An order under this same weak standard could reveal all her e-mail correspondents and Web surfing activity. With the rapid decline of data storage costs, an ever larger treasure trove is routinely retained for ever longer time periods by phone and Internet companies.

Had the FBI chosen to pursue this investigation as a counterintelligence inquiry rather than a cyberstalking case, much of that data could have been obtained without even a subpoena. National Security Letters, secret tools for obtaining sensitive financial and telecommunications records, require only the say-so of an FBI field office chief.

Though President Barack Obama once pledged to end the use of these letters to siphon up sensitive information about innocent Americans without judicial oversight, they have been issued in unprecedented numbers during his administration. More than 14,000 Americans were affected just during his first year in office. Internal audits have revealed “widespread and serious misuse” of this authority, yet Congress has not acted to restrict it.

Unlike conventional wiretaps or physical searches, many of these methods can be used without the targets ever being told ‑ regardless of whether evidence of a crime is found. Americans remain largely in the dark about how widely or frequently they are used.

While federal courts must report on the number of wiretap orders issued each year, there’s no similar requirement for most other forms of digital surveillance. Where reporting requirements exist, they are routinely flouted by the Justice Department, which sometimes waits years to provide Congress with mandatory reports.

With Broadwell identified as the anonymous emailer ‑ explaining her surprising knowledge of Petraeus’ social calendar ‑ one might have expected the investigation to be closed. Yet, though Justice Department attorneys seem to have ultimately determined that Broadwell committed no crime, the bureau didn’t stop.

Rather than questioning Broadwell or Petraeus at this point, the FBI sought access to the contents of her email accounts and uncovered thousands of intimate messages, largely irrelevant to the purpose of this inquiry, that revealed an illicit affair between the married CIA director and his Boswell.

Humphries—whose “worldview,” according to FBI sources, led him to fear a pre-election coverup to protect Obama — then re-emerged as a “whistleblower” and leaked the sordid investigation details to House Majority Leader Eric Cantor (R-Va.).

At some point—it’s still unclear how— the FBI also obtained “flirtatious” e-mails between Kelley and General John Allen, which were later disclosed to the military. These, too, appear to have been non-criminal, however allegedly “inappropriate.”

Petraeus seems to have behaved stupidly on every possible level. But this chain of events should still be profoundly disturbing to anyone familiar with the FBI’s long and ugly history of using targeted leaks from electronic surveillance in an attempt to destroy political adversaries. Perhaps the most notorious example remains J. Edgar Hoover’s attempt to drive Martin Luther King Jr. to suicide, using tapes of his extramarital liaisons, so that he could be replaced by what the bureau euphemistically called “the right kind of Negro leader.”

This incredible record of abuse was uncovered only years ‑ and in some cases decades ‑ after the fact, following an intensive Senate investigation.

Concerns about the bureau’s power should only be more pressing in an age where cheap data storage and a fear-fueled blank check for intelligence agencies combine to give the government a detailed portrait of our virtual lives that would have staggered even Hoover. The demand for access to Broadwell’s emails was just one of 6,321 requests for user data—covering 16,281 user accounts—fielded by Google alone in the past six months. Those requests may expose not just current correspondence but years’ worth of e-mails and chats, as they did with Broadwell.

Though technology continues to advance at a breathtaking pace, the federal digital privacy rules were written in 1986 ‑ when Atari was king. Investigators often don’t even need a Fourth Amendment search warrant to go fishing through your emails. For messages on a server longer than six months, a prosecutor’s subpoena or a court order based on that same weak showing of “relevance” to an investigation can do the trick.

Even if you don’t use Google and aren’t currently under suspicion, there’s no guarantee that some of your communications aren’t sitting in a database awaiting a curious agent’s query. Under the 2008 amendments to the Federal Intelligence Security Act (FISA), the National Security Agency now has broad power to vacuum up international communications without the need for individual warrants ‑ power that has predictably resulted in “over-collection” of even domestic emails on a massive scale.

The Senate Intelligence Committee has robust oversight powers under the FISA ruling, but the NSA has repeatedly refused to give even a rough estimate of how many American citizens’ communications are now stored in their vast database.

You don’t have to sympathize with Petraeus to wonder whether any prominent national figure who runs afoul of the FBI—or another influential official, for that matter—could survive the kind of humiliating exposure our modern surveillance state makes commonplace. If everyone has a skeleton or two in the closet, information is the power to decide whose careers will survive.

We have unwittingly constructed a legal and technological architecture that brings point-and-click simplicity to the politics of personal destruction. The Petraeus affair has, for a moment, exposed that invisible scaffolding ‑ and provided a rare opportunity to revisit outdated laws and reconsider the expanded surveillance powers doled out over the past panicked decade.

Congress should seize the opportunity to re-examine and revise these myriad surveillance techniques and update the oversight process. At a bare minimum, lawmakers should drag the 1986 Electronic Communications Privacy Act into the 21st century ‑ requiring a warrant for all law-enforcement access to communications contents and tightening the rules for access to sensitive information, such as cellphone location data. They should also demand more answers about the use of programmatic surveillance under the FISA Amendments Act—and refuse to reauthorize the law until they get them.

If we don’t take steps to rein in the burgeoning surveillance state now, there’s no guarantee we’ll even be aware of the ways in which control is exercised through this information architecture. We will all remain exposed ‑ but the extent of our exposure, and the potential damage done to democracy, is likely to remain invisible.

TOP PHOTO: General John R. Allen and General David H. Petraeus at Bagram Airfield. REUTERS

INSET PHOTO: ISAF handout image of General David Petraeus and Paula Broadwell. Reuters

12 comments

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Tell the headline writer it’s “collateral”

Posted by Anonymous | Report as abusive

Big Brother is obviously with us and he is named the FBI. Their ability to do this sort of surveillance is the scary part of the story. The FBI’s actions should be the front and center stage. The fact that two consenting adults had an affair is lack luster. But the FBI, now this is very, very scary stuff. America should be alarmed.

Posted by Blind_Dawg | Report as abusive

The ability to surveil is very concerning, but as this case grows, we can see the problems it has revealed. There is the Orwellian surveillance danger, but there are also some benefits in discovering some very dysfunctional behavior. Jill Kelley seems to be a very real concern going by the 911 call that has been produced where she claimed to have diplomatic immunity when she did not. She seems to be someone we wouldn’t want having access to the areas she mingles with regularly.

Posted by possibilianP | Report as abusive

Well, since nobody seems to complain or care, nobody in office has any incentive to do something about it. I don’t think “privacy” was discussed a single time during the presidential campaign. American’s simply don’t care enough to actually do anything about it.

There’s a reason why I haven’t signed up for Facebook, keep my cellphone off unless I need to make an outgoing call, and rarely shop online.

It’s because I value my privacy.

Posted by mfw13 | Report as abusive

Julian, thank you very much for your critically important contribution. I agree that by far the most unsettling piece of information emerging from this whole sordid affair is that we now know that any lowly FBI agent with a bare chest can kick off an ‘inquiry’ capable of taking down generals and the head of the CIA at will.

Said agent can even garner ‘whistle-blower’ status from D.C. Republicans like Eric Cantor, should he choose to promote partisan political turmoil by cluing in party politicians via back channels, should he get impatient with his higher-ups. This should be standard fare only in a banana republic, not in a developed democracy!

As you have detailed, this means we are the proud owners of a national security apparatus which is ready, willing, and able, at the drop of a hat, at their personal discretion, yes, even for the venal motive of a lowly, bare-chested FBI field agent wishing to curry favor with an attractive female friend, to totally and irreversibly violate the privacy of any and every citizen of the United States.

This is textbook total surveillance state. (I urge readers to view the film ‘The Lives of Others’ to appreciate how personal motives and vendettas of security agents can play out for average citizens, when they are magnified by the ability to wield a secret police apparatus into play, as happened here.)

It has been our good fortune that the essential piece for a police state, the lack of power of the secret police apparatus to arrest and indefinitely jail citizens without issuing formal charges, i.e., without a trial or the right to defend oneself, has been missing. From our founding as a nation in 1776, this has always been a central tenet of our democracy. But amazingly, this summer and fall, Congress and Pres. Obama gave Homeland Security and our military that power, too (written into the National Defense Authorization Act – NDAA).

Whenever we happen to elect a politician willing to use these powers (Pres. Obama claimed at the signing ceremony he personally will not), and should our courts allow this violation of our Constitution, nothing will stand between us and a total surveillance and generic, run-of-the-mill, police state.

If the Petraeus affair demonstrates anything, it demonstrates that it’s high time to start reining in these extremely dangerous threats to our liberty. In a security force compelled by laws to place value on the freedom of citizens, the FBI agent in question, and the FBI itself, would most certainly never have had the power to initiate and pursue this sordid cyber-dragnet, which so far has netted just one visible achievement – the drumming out of office of the chief of the FBI’s rival, the CIA.

This most certainly should be a warning for all of us – if the FBI can get generals, and the head of the CIA, they can get anyone, and none of us are the least bit safe.

Posted by streetview | Report as abusive

Julian, thank you very much for your critically important contribution. I agree that by far the most unsettling piece of information emerging from this whole sordid affair is that we now know that any lowly FBI agent with a bare chest can kick off an ‘inquiry’ capable of taking down generals and the head of the CIA at will.

Said agent can even garner ‘whistle-blower’ status from D.C. Republicans like Eric Cantor, should he choose to promote partisan political turmoil by cluing in party politicians via back channels, should he get impatient with his higher-ups. This should be standard fare only in a banana republic, not in a developed democracy!

As you have detailed, this means we are the proud owners of a national security apparatus which is ready, willing, and able, at the drop of a hat, at their personal discretion, yes, even for the venal motive of a lowly, bare-chested FBI field agent wishing to curry favor with an attractive female friend, to totally and irreversibly violate the privacy of any and every citizen of the United States.

This is textbook total surveillance state. (I urge readers to view the film ‘The Lives of Others’ to appreciate how personal motives and vendettas of security agents can play out for average citizens, when they are magnified by the ability to wield a secret police apparatus into play, as happened here.)

It has been our good fortune that the essential piece for a police state, the lack of power of the secret police apparatus to arrest and indefinitely jail citizens without issuing formal charges, i.e., without a trial or the right to defend oneself, has been missing. From our founding as a nation in 1776, this has always been a central tenet of our democracy. But amazingly, this summer and fall, Congress and Pres. Obama gave Homeland Security and our military that power, too (written into the National Defense Authorization Act – NDAA).

Whenever we happen to elect a politician willing to use these powers (Pres. Obama claimed at the signing ceremony he personally will not), and should our courts allow this violation of our Constitution, nothing will stand between us and a total surveillance and generic, run-of-the-mill, police state.

If the Petraeus affair demonstrates anything, it demonstrates that it’s high time to start reining in these extremely dangerous threats to our liberty. In a security force compelled by laws to place value on the freedom of citizens, the FBI agent in question, and the FBI itself, would most certainly never have had the power to initiate and pursue this sordid cyber-dragnet, which so far has netted just one visible achievement – the drumming out of office of the chief of the FBI’s rival, the CIA.

This most certainly should be a warning for all of us – if the FBI can get generals, and the head of the CIA, they can get anyone, and none of us are the least bit safe.

Posted by streetview | Report as abusive

You speak like there is a normal USA lying in wait just underneath the crippled laws. You, me and the dog laying on the floor sleeping have been sold into slavery by corporations, the vested interest of the .0001% and a government crippled by capitalism run amok. They don’t care about the USA citizen or the constitution. The constitution means nothing in our eat or be eaten USA. Free trade agreements with communist china, Exxon controlling the energy policy of the country, and global warming about to wipe us clean off the face of the planet because Rupert Murdoch thinks it’s a commie scheme. Find your own solution, because no one is going to give it to you.

Posted by UScitizentoo | Report as abusive

The real travesty here is the convenient pretense that we in the USA live under a “Constitutional” Government. The will of the Government is the “Constitution”, nothing more or less. It looks a lot like the same one Genghis Khan ruled by. We have not punished a high ranking betrayer of the People (who supposedly rule) since Benedict Arnold.

What we need is a real Constitution, with real Rights that cannot be suspended, taken away under any circumstances. And a provision to recover the pay and benefits from Federal officials that commit felonies, especially ones that harm a weak person. Such recoveries should emphatically not require any kind of approval whatever from the miscreant’s branch of Government, and half of the recovery should be paid to any citizen who files for the recovery.

But this is fantasy. We will have the same law in the future that we have today. The strong prey upon the weak with impunity.

Posted by usagadfly | Report as abusive

High level security holders must live the type of life that does open them to blackmail.

Which open the question as far sax blackmail: Why are not such officials and their wife required to pledge to have sex with each other 3 times a day or face jail or have the wife give the official that she will not try to hurt him in any way particularly legally if he has sex with others.

Posted by Samrch | Report as abusive

Did we punish Benedict Arnold? I know we hanged Major Andre, but he wasn’t an American. One of his captors was my multi-great granduncle, Isaac Van Wert. I think Arnold slithered off quite easily and found a place for himself in London eventually, where he died.

So traitors can get away with a lot if they ally with 1) distant kinfolk or 2)longtime allies and friends. One notable exception is Jonathan Pollard, and for the reason that the people he sold out to, sold his information farther down the river, to fatal results for a fair number of our spies in the Soviet Union. He was said to have stolen the “crown jewels” of American intelligence. Given our corrupt Establishment in the present day, with decadent use of government perks and revolving door contractor work, I could imagine Jonathan Pollard would only get a slap on the wrist and be popular on the talk show circuit. Timing is everything.

Posted by musings3 | Report as abusive

musings3,
There have been more than a dozen espionage agents caught and prosecuted in the U.S. since 1985. And I’m just talking about U.S. citizens, not foreign nationals: Ames, Walker, Howard, Pelton, Pollard, etc. are either dead or serving time still. Pollard deserved what he got, and it doesn’t matter who he spied for, in this case Israel.

Posted by Andvari | Report as abusive

If you’ve really watched Petraeus over the years, nothing about this scandal is surreal. This arrogant, self-absorbed man was bound to slip up. He did it big time and with the media he so greedily cultivated watching him. He should never be allowed to return to public life for the way he misused taxpayer funds, if nothing else.

Posted by ironiclad | Report as abusive