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.