When the CIA director cannot hide his activities online, what hope is there for the rest of us? In the unfolding sex scandal that has led to the resignation of David Petraeus, the FBI’s electronic surveillance and tracking of Petraeus and his mistress Paula Broadwell is more than a side show—it's a key component of the story. More importantly, there are enough interesting tidbits (some of which change by the hour, as new details are leaked), to make this story an excellent lesson on the government’s surveillance powers—as well as a reminder of the need to those powers.
Metadata is king
Ms. Broadwell apparently attempted to shield her identity by using anonymous email accounts. However, it appears that her efforts were thwarted by sloppy operational security and the data retention practices of the companies to whom she entrusted her private data.
The New York Times “[b]ecause the sender’s account had been registered anonymously, investigators had to use forensic techniques—including a check of what other e-mail accounts had been accessed from the same computer address—to identify who was writing the e-mails.”
Webmail providers like Google, Yahoo and Microsoft retain login records (typically for more than a year) that reveal the particular IP addresses a consumer has logged in from. Although these records reveal sensitive information, including geo-location data associated with the target, US law currently permits law enforcement agencies to obtain these records with a mere subpoena—no judge required.
Although Ms. Broadwell took steps to disassociate herself from at least one particular email account, by logging into other email accounts from the same computer (and IP address), she created a data trail that agents were able to use to link the accounts.
The Wall Street Journal similarly “agents spent weeks piecing together who may have sent [the emails]. They used metadata footprints left by the emails to determine what locations they were sent from. They matched the places, including hotels, where Ms. Broadwell was during the times the emails were sent.” NBC , revealing that “it took agents a while to figure out the source. They did that by finding out where the messages were sent from—which cities, which Wi-Fi locations in hotels. That gave them names, which they then checked against guest lists from other cities and hotels, looking for common names.”
Based on these reports, it seems that Ms. Broadwell did at least avoid the common mistake of sending sensitive emails from her residential Internet connection. However, she did not, it seems, take affirmative steps to shield her IP address (such as by using Tor or a privacy-preserving VPN service). Instead, she apparently logged in to her email accounts from public WiFi networks, such as those in hotels. Had she sent just one email, she might have been able to at least maintain plausible deniability. However, each new hotel (and associated IP login record) reduced the anonymity set of potential suspects. By the second or third hotel, it is likely that the list of intersecting names from the various guest lists contained just a single name: Ms. Broadwell’s.
While the details of this investigation that have leaked thus far provide us all a fascinating glimpse into the usually sensitive methods used by FBI agents, this should also serve as a warning, by demonstrating the extent to which the government can pierce the veil of communications anonymity without ever having to obtain a search warrant or other court order from a neutral judge.
The guest lists from hotels, IP login records, as well as the creative request to email providers for “information about other accounts that have logged in from this IP address” are all forms of data that the government can obtain with a subpoena. There is no independent review, no check against abuse, and further, the target of the subpoena will often never learn that the government obtained data (unless charges are filed, or, as in this particular case, government officials eagerly leak details of the investigation to the press). Unfortunately, our existing surveillance laws really only protect the “what” being communicated; the government’s powers to determine “who” communicated remain largely unchecked.
Digital “dead drops” don’t protect you from government surveillance
For more than a decade, a persistent myth in Washington DC, fueled by several counterterrorism experts, has been that it is possible to hide a communications trail by sharing an email inbox, and instead saving emails in a “draft” folder. This technique has been used by , (the shoe bomber), the 2004 , terrorists , as well as some domestic “.” This technique has appeared in as early as 2003, and was described in a written by a DOJ official in 2004. It is hardly a state secret.
Apparently, this method was also used by General Petraeus. the Associated Press, “[r]ather than transmitting emails to the other's inbox, they composed at least some messages and instead of transmitting them, left them in a draft folder or in an electronic ‘dropbox,’ the official said. Then the other person could log onto the same account and read the draft emails there. This avoids creating an email trail that is easier to trace.”
The problem is, like so many other employed by terrorists, it doesn’t work. Emails saved in a draft folder are stored just like emails in any other folder in a cloud service, and further, the providers can be , prospectively, to save copies of everything (so that deleting the messages after reading them won’t actually stop investigators from getting a copy).
Ironically enough, by storing emails in a draft folder, rather than an inbox, individuals may be making it even easier for the government to intercept their communications. This is because the Department of Justice that emails in the “draft” or “sent mail” folder are not in “electronic storage” (as defined by the Stored Communications Act), and thus not deserving of warrant protection. Instead, the government has argued it should be able to get such messages with a mere subpoena.
I hope that this scandal will finally kill off this inaccurate myth about hiding emails from the government. General Petraeus should have known better—placing documents in an email “drafts” folder is not an effective way to hide things from the government. It wasn’t 10 years ago, and it certainly isn’t anymore.
More broadly, this scandal centers around email, and it’s a reminder that the legal protections for email fall far short of what they should be. We need to modernize our privacy laws—for example by that is now before the Senate Judiciary Committee—and we need protections that cover metadata of the kind that was apparently so central in this scandal.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.