Why I Think It Should Be Hard For The Government To Read My Email

Well, it’s been two weeks since the Petraeus scandal broke, and the dust seems to be settling as we haven’t had any new shocking plot twists for a few consecutive days. I believe that the real scandal is not what the FBI uncovered (that the head of the CIA was having an affair with his biographer), but how they uncovered it (by poking through private emails with no warrant or even a real suspicion of a crime).

To the best of my current understanding, one woman (Kelley) complained to an FBI friend about some harassing emails from another woman (Broadwell), and the FBI started poking through this woman’s digital stuff. These emails appear to have been much less “harassing” than the veiled death threats that ideological bloggers get on a regular basis, but the FBI kept poking around and figured out that this other woman was having an affair with General Petraeus.

Glenn Greenwald took great delight in pointing out the irony:

As unwarranted and invasive as this all is, there is some sweet justice in having the stars of America’s national security state destroyed by the very surveillance system which they implemented and over which they preside. As Trevor Timm of the Electronic Frontier Foundation put it this morning: “Who knew the key to stopping the Surveillance State was to just wait until it got so big that it ate itself?”

…Put another way, having the career of the beloved CIA Director and the commanding general in Afghanistan instantly destroyed due to highly invasive and unwarranted electronic surveillance is almost enough to make one believe not only that there is a god, but that he is an ardent civil libertarian.

It’s almost like there’s a sort of “natural law” that governments shouldn’t be able to easily spy on their citizens, and when they break that law, eventually it becomes too easy to spy on themselves and their own secrets get revealed, naturally encouraging more proper boundaries.

Or is that preposterous? What if it’s just not a big deal that the FBI can get your emails from Google without a warrant just because outdated communication laws don’t prohibit it? It’s not like they have the interest or the resources to browse everybody’s emails, and as long as I don’t make them suspicious they’ll never go after mine, right? (Tell that to the head of the CIA.) OK, fine, but I don’t have an affair hiding in my Gmail… who cares if the FBI sees my Newegg receipts and USGS earthquake notifications?

Well, I think there are still two reasons to care. Yes, privacy seems to be rapidly diminishing, and not just from the government (think cell phone cameras). It may inevitably disappear, but I think there are two important reasons to resist and drag and delay the centralized collection of the details of our private lives as much as possible.

First, there’s the “oops cost,” which is when the government takes an innocent person’s time, money, resources, or life by making a mistake. The more information about citizens the government has access to, the greater the potential oops cost. Sometimes officers go to the wrong houses and knock down doors, handcuff seniors eating breakfast, or kill family dogs – think how much easier it would be to mix up an electronic address that is not concretely tied to a physical person. I don’t want to get in trouble because someone in power finds an incriminating email from someone with the same name as me and accidentally thinks it’s me.

Second, there’s the “political warfare cost,” which is when people in government selectively use their power to hurt their political enemies. Unlike my hypothetical email mix-up, this has actually happened with government surveillance in the past, as Julian Sanchez explains:

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.

What’s the point of requiring a warrant? Don’t those get exaggerated and abused, too? Sure, nothing’s foolproof. But it at least requires (as I understand it) the FBI to justify to a judge that there is some suspicion of a crime that “warrants” the accessing of your emails. It at least attempts to reduce the potential oops costs and political warfare costs. It at least puts some brakes, however weak, on this runaway train.