Highlights Burgeoning Surveillance State
by Julian Sanchez
November 19, 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
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
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
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
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.
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.