Been following with a mix of fascination and shame for the last week and a half. Over the last decade, two trends conspired to reduce our privacy. First, theres technology. Social media allowed us to share every detail of our lives intentionally and unintensely. The photo tagged on facebook, the wayward strike to reply to all button. You get the picture. We now leave a digital trail traced by anyone who buys access to it. This week, the Obama Campaign knew what tv shows the targeted voters watched. Theres the massive explosion of the surveillance in the wake of 9 11. Thanks to the petri at act and continued under the obama administration. The government has more access to info about us than at anytime in history. A small example of what this looks like. Check out this graph of u. S. Government from google. These are requests that dont require warrants and this doesnt include the security related requests not disclosed. For awhile, i thought the combination of these trends, the u bik wiity of technology was pushing us to a future where citizens would be unable to keep their secrets while the government keeps its secrets. I feared it would end up totally exposed to each other and the state. The state and its doing and what its doing in our name would be a mystery. Then miraculously, but also inevitably, they collided with each other in the petraeus affair. The fourstar generals communications with broadwell reveal a lot of mundane personal failings. Really, it seems not anything scandalous as far as the publics fear goes. The only possible scandal, as far as i can tell, is the conditions which the fbi came to read the private emails of petraeus and broadwell. The investigation began because jill kelley, an acquaintance of petraeus served as the unpaid liaison in tampa received hostile emails that chastised her for flirting with petraeus. Kelley complained to an fbi agent and somehow, an fbi investigation into cyber stalking was opened, one that led the fbi to read broadwells emails, then petraeus and here we are. Cyber stalking investigations appear to be rare. Thousands of women are cyber stalked every year. The recourse for them is often nothing, which is a problem. Ten cases have been prosecuted. Somehow in this case, because jill kelly knew a guy, an investigation got opened here. If the thing that decides whether a case is open is someone has an agents business card, then we are in trouble. In the midst of this coverage, its difficult to separate it from trivial and the relevant. As gripping as the tale is, it is almost entirely that, a human drama. People acting as people do. Im reasonably sure, a sweep of emails opened at random would reveal similarly sorted things. Thats the point. We all have facts about ourselves we dont want the world to know. Its why privacy is important. Details over our lives matter as a core protection from state overreach. The power that comes from inside knowledge of a persons secrets and their private lives have been throughout history accompliced tyranny. J. Hoover days are long gone, his ghost hovers over all of us. Im joined by spencer, and a correspondent for news week and the daily beast. David from author of the ebook why romney lost. It makes me think you started working on it five years ago. Its great to have all of you here. You have been doing fantastic reporting about the Security State and technology. Tell me about the conditions under which the government can read my email . I think the first thought we had when he saw this is what does the fbi have to do to get into your email account . Its shocking. As a result of a series of weird Supreme Court decisions from the late 70s. The government doesnt have to meet that high of a standard. Theres a 1986 law that governs federal access to electronic communications. While it requires a warrant for access to unopened emails, it permits a subpoena or a court order based on a weak showing of relevance to be used to access emails that have been opened, documents stored in the cloud and also emails that sat unopened for more than six months. In this case, it looks like a warrant was used to get at broadwells emails. It seems like probably the attorney general should have had to personally sign off on that. Im curious if it was done in this case. They dont have the kinds of added protections that apply if it were a wiretap to her phone line. If it were a phone wiretap, they would have had to show there wasnt a less intrusive way to conduct the investigation. Implement min miization procedures, the kind of thing where they hang up the phone if its a mobsters wife calling as opposed to the target. If you think of the vast amount of email archives that are stored in a Cloud Service like gmail, it is weird that we dont apply this. Every constitutional reason you would want those added protections, secret, the volume of innocent information thats exposed seems to apply to email, but they dont. This basic fact which i have learned in reading about this and prepping for todays show, that 1986 act, the electronic privacy act, ecpa. Emails over six months, the government can go to the email provider and say hey, can you give me their emails and they say sure. Think about emails sitting on your server older than six months as having a big sign on your house in terms of privacy. Yeah. In the sixth circuit, theres a case where a court did say for those older emails, the Fourth Amendment applies there. Its amazing to me it took as long as as it did to rule the Fourth Amendment is applicable to emails. Google has been aggressive about pushing back. They are able. They have a solid legal team to insist on a warrant. Its not clear why a warrant would have been granted in this case once they identified the person who sent the emails. Again, there you have it. This is the days before email was stored. The logic behind the 1986 law, this is written, again, at a time when most people are downloading email which is the physical thing you have to search. Email is going to be prot t protected. No one is going to store all these emails out in the cloud. A megabyte of Storage Space cost 100. Both of you are National Security reporters and report on intelligence. We have seen the growth of this and theres amazing reporting on this. Theres little political pushback. Aclu and ccr groups do remarkable work. In terms of constituency for privacy, its hard to locate that. I wonder if you think why it is and if it changes this die noomic. I think people are upset about the violations of privacy than the government. I think its something people get worked up about. Someone can read your emails and have access to them. Theres a constituency you can see that is searching for a champion. Theres a bit of a projection in that community, 2008, that it might be barack obama, the former constitutional law professor who talked in the days when he was coming to the senate about the accesses of the bush area surveillance programs. Has a reasonable chance of becoming president and theres an Important Senate fight over authorizing those somewhat legally grandfathering them in and making them legal. He jumps to the side of enormous executive power. We havent seen, there are some people, rand paul is a good example. Ron is another good example. People who are recognizing there is across the spectrum, a fear about how much information the government can saimply and easiy have. Seeing someone make it an issue. The irony might be the David Petraeus electronic records. Thats the interesting thing particularly for conservatives. It seems it would be possible to build constituency there. I want to hear your thoughts after this break. If you think running a restaurant is hard, try running four. Fortunately weve got ink. It gives us 5x the rewards on our internet, phone charges and cable, plus at Office Supply stores. Rewards we put right back into our business. This is the only thing weve ever wanted to do and ink helps us do it. Make your mark with ink from chase. Can i still ship a gift in time for christmas . Yeah, sure you can. Great. Wheres your gift . Uh. Whew. [ male announcer ] break from the holiday stress. Ship Fedex Express by december 22nd for christmas delivery. No, no, no, stop humans one day, were coming up with the theory of relativity, the next. Stop, stop, stop my car not so much. But thats okay. Youre covered with great ideas like optional better car replacement from Liberty Mutual insurance. Total your car, and we give you the money to buy one a model year newer. Learn about it at libertymutual. Com. Liberty mutual insurance. Responsibility whats your policy . A wit takes some doing. Snt just happen. Some coordinating. And a trip to the one place with the new ideas that help us pull it all together. From the things that hang and shine. To the things that sparkle and jingle. All while saving the things that go in our wallet. More saving. More doing. Thats the power of the home depot. Create a musical light show with the maestro mouse voice activated ornament. Its been interesting to watch conservatives respond to the petraeus news. I think hes fought it well among conservatives. Hes always working for barack obama and theres a scandal around him. I wonder, do you think theres a constituency on the right for an actual privacy interest . Im one of the less liberal conservatives you are going to talk to. The startling thing is theres not enough secret si. I think its understandable the fbi would want to know that if someone has classified documents whose had an intimate relationship with the cia director, you want to know about that. You might have a leak here. Once you discover, its purely personal, why did it make it into the newspapers at all. In a different time and place, the way it would have been handled, the fbi would have concluded their investigation, shared it with the president. They wouldnt just let you know he knows this about you. Fighting a bureaucratic battle. Right now, im reading the biography of dwight eisenhower. Everyone new of his affair. He talked of divorcing his wife. They said if you do that, you will be fired. If you dont divorce your wife, we will keep it quiet. The president could have refused petraeus resignation. It seems to me its like saying new yorkers are threatened by a giant tsunami and the risk of great white sharks. One is so colossal an event. You are talking technology. Technology. Every humiliating privacy story. Remember the woman who wrote an intimate love letter to a man she met and he forwarded it to 87 of his friends . I dont know where she lives now, probably new zealand. The lives of the younger people we know, none of the things that ruined their lives have anything to do with government. Its the technological possibility. What do you say to general john allen . At a certain point, allens emails seem to be friendly and flirtatious. What we know, the woman gets swept up for reasons that are not clear to myself and other reporters, sent to the pentagon for an investigation because the flirtatious emails might indicate adulterous affairs. Its a government issue. If we never read about it, there would have been no problem. The reason its catastrophic is because it was leaked. This is a story about leakage. Its bizarre. Its not an investigation into the leaking of classified documents. This was an investigation into half a dozen snarky emails. I am libertarian. You are individualistic about this. When the fbi was spying on the sexual activities of Martin Luther king and other activists, members of the Supreme Court, members of executive agencies was not that it was individually embarrassing for them, in violation of their personal dignity, politically, in a democracy, the kind of power that comes with that information is dangerous beyond, whatever indignity is on the individual. We are going keep a close eye on the private activities, the director of the cia. They have valuable information. There happens to be that is something that counter espionage is a fact of life, but it doesnt have to appear in the newspaper. Monitoring his email from the cia, you would be less disturbed by it. He said in march, talking the new era of tech. I would like to discuss three challenges, the utter transparency of the digital world, we have to rethink our notions of identity and secret si. When mitt romney, think of the two biggest stories of the Romney Campaign for presidency. The 47 comment produced because somebody had a smartphone. It will happen again and again to people in politics. It has nothing to do with the stakes. I wonder what your career ending moment might be. Its a delicious buffet. I wont tell anybody. It reminded me of what you are saying about the investigation. Yesterday, i was talking to somebody from joint operations command. He said the problem was with the fbi, they investigated. As soon as say thaw the emails and what they said about paula they should have dropped the whole thing. I think they should double down and do a full court press on this. There should be a heart break division at the fbi investigating the crimes. I think things will be better there. You think that . Yeah. Sure. Here is the question. Now, theres private things. I dont want to minimize this. The question is, as a matter of substance and policy, then the question is, should what we learned about general petraeus cause us to rethink his relationship with the press . We should we have so few good generals. The president should have refused his resignation. I dont think a general can retire. You remain on active duty. Call him back. His contribution to the cult of petraeus. Theres a book of history of generals. We are going talk to them about the legacy of general petraeus after this. Pink castle thing. And you really dont want to pay more than you have to. Only citi price rewind automatically searches for the lowest price. And if it finds one, you get refunded the difference. Just use your citi card and register your purchase online. Have a super sparkly day ok. [ male announcer ] now all you need is a magic carriage. Citi price rewind. Buy now. Save later. The capability of a pathfinder with the comfort of a sedan . So you went right back to the pathfinders essence, kept its dna, and created the nextgen s. U. V. Starting with a drivetrain that gives bestinclass fuel economy of 26 miles per gallon, highway. And intuitive 4wheel drive . If inside it had bestinclass front, head, and leg room and interior roominess . And outside, bestinclass standard towing of 5,000 pounds . [ whistles ] [ all scream, laugh ] [ male announcer ] yeah, that would be cool. Introducing the allnew nissan pathfinder. Its our most innovative pathfinder ever. Nissan. Innovation that excites. A great clean doesnt have to take longer. Im done. Im gonna read one of these. Im gonna read one of these [ female announcer ] unlike sprays and dust rags, swiffer 360 dusters extender gets into hardtoreach places without the hassle. So you can get unbelievable dust pickup in less time without missing a thing. I love that book. Can you believe the twin did it . Swiffer. Great clean in less time. Or your money back. The revelations about general petraeus occasioned some rethinking of the generals legacy and also more specifically than the legacy, his relationship to the press. Open for debate. As someone who is not a National Security reporter but reads on this topic, is this should this make me think the petraeus myth was hyped from the beginning or irrelevant. So what, the guy had an affair. Its heightened because the affair was with a woman writing a biography of him. I want to bring in tom ricks, author of the generals. Also senior fellow for new american security. Tom, ill start with you. Do you think we should be this should occasion us to take a hard look at the coverage of general petraeus over the last eight years . No question that general petraeus recognized he needed to talk to the media. I think, what worries me are the lessons of it. Hey, you are too smart like David Petraeus and you get in trouble. Its the wrong lesson. Petraeus understood one of the roles of the general was to be a megaphone, to explain policies, reach out to his soldiers, to the American People and in iraq to the iraqi people. And give his views out there. He has a ph. D. From princeton. He likes reporters and had a successful first tour in iraq. In the army its three strikes. You are talking the fbi scandal. I think there are two. One is the invasion of privacy. The fbi looking at a lovers quarrel. The other scandal, i think its more worrisome is that nobody pays attention to these wars until theres a titillating affair. It makes me think, we as a people, care more about the sex lives of our generals than the real lives or our soldiers. The scam is we tolerated three years of lousy generalship in iraq. Tommy franks,ry car doe sanchez and george casey. The scandal is 11 commanders in 11 years in afghanistan. Its no way to run anything. Theres an amazingly brutal hilarious headline about americans horrified to learn details of afghanistan while searching for sex details. Theres a war going on. Spencer, i want you to respond to tom here. You wrote a piece that i thought was an honest piece about how you contributed to the cult of David Petraeus and what you think about the relationship between the press and petraeus specifically and generals in the military more broadly. When i was covering the broadwell affair, it was hard to understand the affair and how it started without understanding the cult of personality that existed. Theres a reason hes having an affair. Theres purchase for a lot of biographies. Four biographies published on petraeus . Something like four and a half. Depending on how you count them. This was a media strorry, it would be dishonest not to look at my role here. You know, i want to take a little bit of an issue with something tom said. You know, petraeus likes journalists and so forth. I think petraeus had a mission to pull off, getting information out to the public that was favorable about about the war itself. Thats what i want to look at. It happened to be the case as i think, you know, tom experienced as well. A lot of petraeus peers did not want the back and forth he made himself available for. It was occasion for myself viewing petraeus as being a more intellectually honest stuart of this war. I want to account for that. One of the things that came out here, you hear now in the aftermath, a lot of his peers didnt like him and resented him and were frustrated and thought he was a con artist. I dont necessarily say, well, clearly they are right and petraeus was a terrible kind of con artist and he pulled one over on the Ameri