One of the most striking aspects of the Petraeus-Broadwell fiasco
is how quickly the government's investigation ballooned.
Beginning with a half-dozen harassing emails, the case ultimately
resulted in the FBI reviewing, according to reports, 20,000 to
30,000 pages of email, including some to or from Gen. John Allen.
Allen was never suspected of any wrongdoing. He came to the
government's attention because he corresponded with the person who
received the first handful of questionable emails. Now, he is the
subject of innuendo, and his career is on hold.
What other federal agencies have the power to conduct such
sweeping investigations? Quite a few, it turns out. And what
protection does anyone have against getting caught up in similar
fashion? Not much, under current law, the Electronic Communications
Privacy Act. Efforts are under way to reform the ECPA, but federal
regulatory agencies are resisting because they want a power beyond
even that exercised by the FBI in the Petraeus-Broadwell case.
Reports indicate that the FBI obtained a warrant from a judge to
force service providers to turn over the contents of email of those
swept into the vortex of that investigation. However, in a debate
being played out in the Senate Judiciary Committee, federal
regulatory agencies are seeking authority to issue their own
subpoenas to compel disclosure of email, without going to the target
of their investigation and without getting the approval of a judge.
Rather than the FBI getting a warrant from a judge in a case with
at least some national security implications, imagine the National
Labor Relations Board issuing its own subpoenas to obtain from
service providers equally voluminous amounts of email of corporate
officers involved in labor disputes with their employees.
This threat to privacy and basic dignity arises because of the
confluence of several momentous developments.
We have all become dependent on the convenience and power of
digital communications services - email, text, cellphone, social
networking and others. The sheer volume of data we each generate
electronically is unprecedented. We inevitably intermingle our
personal and professional lives.
Most significantly, though, unlike postal letters or telephone
calls, our digital communications are stored with service providers,
in the middle of the Internet cloud. This opens up new potential for
government agents to obtain our most private communications without
ever going before a judge and without ever confronting us and giving
us an opportunity to assert our rights. …