Adam Serwer

Reporter

Adam Serwer is a reporter at Mother Jones. Formerly a staff writer at the American Prospect, he has written for the Washington Post, the Root, the Village Voice, and the New York Daily News.

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Will Congress Protect Your Inbox From Warrantless Snooping?

The Senate takes up a major privacy bill that will decide whether the government needs to meet the same standard to scour your Gmail account as it does to search your underwear drawer.

—By Adam Serwer

| Wed Nov. 28, 2012 8:02 AM PST

UPDATE 11/29/2012, 11:30 AM: The privacy bill easily passed the Senate Judiciary Committee with a voice vote, but it faces a tough fight in the rest of the Senate and the GOP controlled House.

If the authorities want to rummage through your house or tap your phone, they need a warrant. But law enforcement agencies currently enjoy easy access to the most intimate aspects of your online life—everything from emails to pictures to chat logs. Law enforcement officials would like to keep it that way, but on Thursday the Senate Judiciary Committee will take up a plan that would require the government to meet the same legal standard to rifle through your inbox as it would to search your underwear drawer.

At issue is the the Electronic Communications Privacy Act, the 1986 law that outlines the government's authority to access digital communications. The ECPA never anticipated the advent of Gmail or Facebook and the extent to which Americans conduct their lives online; it considered electronic communications older than six months as "storage," and set a lower standard for the authorities to access that information. But now that kind of online "storage" includes not just emails, but photo albums, calendars, and even the unsent messages in your draft folder. If you think that only criminals need privacy, consider that former CIA Director David Petraeus recently resigned in disgrace because an FBI investigation exposed his extramarital affair but found no criminal wrongdoing on his part.

"The law is extremely out of date," says the ACLU's legislative counsel Chris Anders. "It just gives a broad swath of law enforcement agencies the right to read your email and private communications."

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, has proposed a bill that would amend the law to require a warrant to access digital communications (with an exception for national security cases). But his plan has run into stiff resistance from law enforcement groups, and there are signs that the committee's ranking Republican member, Sen. Chuck Grassley (R-Iowa), could try to neuter Leahy's bill. In September, when changes to the ECPA were first being debated, Grassley's office drew up a host of proposed amendments aimed at addressing law enforcement concerns, including one that would have largely preserved the current loophole.

Organizations that represent law enforcement and civil regulatory personnel are leaning heavily on the judiciary committee to maintain the status quo. "Changes to ECPA that could jeopardize timely access would mean that fewer leads could be chased down, a child missing for hours could turn into a child missing for days, and the dedicated men and women in U.S. law enforcement could be unduly restrained from accessing information necessary to prevent or solve crimes while criminals are free to exploit the latest electronic communications technologies," a collection of police and prosecutors' groups wrote in a letter to the committee.

Privacy advocates aren't entirely thrilled with Leahy's proposal, which, while strengthening the ECPA, would weaken a related law, the Video Privacy and Protection Act. That law currently states that companies must ask customers' permission to disclose their rental records to the authorities, but Leahy's bill would water down that standard. As the Electronic Frontier Foundation's Mark Jaycox and Lee Tien note, under Leahy's bill, companies like Netflix could obtain approval to share your information in advance, and then never have to ask again.

The federal courts have shown signs of coming around to privacy advocates' view that scouring your inbox should be treated no differently than searching your bedroom. Whether enough members of Congress realize that modern technology makes that distinction mostly obsolete is a another story.

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GOP Repudiation of Romney on "Gifts"? Don't Be Fooled

—By Adam Serwer

| Fri Nov. 16, 2012 2:17 PM PST

Gov. Jindal speaks at a November 3 rally for then-presidential hopeful Mitt Romney.

Mitt Romney initially called his remarks on the 47 percent video unearthed by my colleague David Corn "inartfully stated." But since his defeat, he's returned to a political theory that divides the United States into makers and takers, arguing that President Barack Obama only succeeded by providing young people, women, and minorities with exhorbitant "gifts" to buy their support, in the form of things like health care coverage and help with student loan debt. (Jon Stewart piled on with some gifts of his own devising.)

"What the president's campaign did was focus on certain members of his base coalition, give them extraordinary financial gifts from the government, and then work very aggressively to turn them out to vote, and that strategy worked," Romney said on a post-election conference call with donors.

A better example of an unearned "gift" is being born the son of a wealthy, famous politician.

My colleague Kevin Drum has already addressed why Romney's remarks are ridiculous—political parties reward their constituencies, and Romney would have pursued goodies for GOP backers had he been elected. Financial institutions would have been very happy with a Romney administration that repealed Dodd-Frank, military contractors would have been delighted with Romney's plan to raise military spending to astronomical levels, and Romney's wealthy donors would have been delighted with his tax cuts for high earners. These are all "extraordinary financial gifts," and unlike student loans or health care coverage, they do nothing to help ensure that being born into a family of modest financial means doesn't prevent a person from succeeding. Help with student loan debt doesn't mean you didn't have to work hard to get good grades. A better example of an unearned "gift" is being born the son of a wealthy, famous politician so that you'll never have to worry about student loan debt.

The more interesting phenomenon, however, is the oppobrium from Romney's fellow Republicans. Louisiana Gov. Bobby Jindal, who likely has his own presidential ambitions, called Romney's remarks "absolutely wrong," and said "We have got to stop dividing American voters." Wisconsin Gov. Scott Walker backed up Jindal, saying that the GOP is the party that "helps people find a pathway to live the American Dream." Conservative writer JP Freire, echoing a theory that Romney's conservatism didn't sell in part because it was not genuine, wrote "I think Romney's saying what he thinks a conservative would say."

Jamelle Bouie: "If there's a problem with Romney's statement, it was the language, not the sentiment."

My former American Prospect colleague Jamelle Bouie, writing at the Washington Post, has a different theory, namely that Republicans are rejecting Romney's remarks because they're politically harmful—not because they see them as incorrect. "If there's a problem with Romney's statement, it was the language, not the sentiment."

I think Bouie has it right. If Romney is saying "what he thinks a conservative would say," it's probably because there are so many conservatives saying it. Rush Limbaugh, whose influence on conservatism dwarfs Romney's, explained the 2012 election results by saying "People are not going to vote against Santa Claus, especially if the alternative is being your own Santa Claus." The sentiment was repeated on Fox News incessantly, with on-air personalities like Eric Bolling saying "people voted to continue to get free stuff," and Bill O'Reilly saying Romney was "right on the money." This notion is deeply flattering to conservatives who would like to imagine themselves as rugged individualists, and those who disagree with them politically as lazy moochers.

As with the 47 percent tape, several conservative intellectuals have rejected Romney's statements and explained why they were incorrect. In both cases, however, Romney's problem was not diverging from conservatism so much as expressing it in ugly and unappealing terms. The Republican reaction from party leaders like Jindal is not a rejection of the worldview underlying Romney's remarks, which is extremely popular in right-wing media. It's an expression of political opportunism from politicians who want to leave their footprints on Romney's back as they chase their own ambitions. If it were anything else, you'd see Jindal telling Rush Limbaugh or Fox News, not Romney, to shut up.

But you aren't.

The Real Reason You Should Care About the Petraeus Affair: Privacy

If the CIA director couldn't keep his emails secret, neither can you.

—By Adam Serwer

| Thu Nov. 15, 2012 4:03 AM PST

CIA Director David Petraeus, one of the most lauded military leaders of his generation, resigned last week after an FBI investigation into email harassment uncovered evidence of his affair with his biographer Paula Broadwell. Here's why you should care: If the director of the CIA can't keep his private life secret from the FBI, you can't either.

It is easy for federal authorities to get access to your online activities. If you think the feds need a warrant to start looking at your email, you're dead wrong. The Electronic Communications Privacy Act, the law governing online communications, was written in 1986. Congress wasn't sure whether to treat email, then in its infancy, more like letters or phone calls. People used to download their email back then, so leaving your information on a company's server meant the feds had to do less paperwork to access it. Now everyone's information is stored online, but that archaic standard is still in place.

"Now everything is kept in the cloud on Google and Yahoo's servers," says Chris Calabrese, legislative counsel for the ACLU. "That quirk of the law has become hugely important for Americans' privacy." Once you've opened an email or your Facebook account, you've provided your personal information to a third party. The government can then ask that third party—Google, Yahoo, Facebook, Friendster, or whatever—for your information, and they don't necessarily need a warrant. The Constitution protects you from unreasonable search and seizure by the government. It doesn't stop third parties from sharing personal information you willingly give them. Likewise, there's no warrant needed to acquire the IP addresses—unique identifiers that can usually be traced to specific geographical locations—of people accessing those email accounts. According to the Wall Street Journal, that's exactly how the FBI figured out Broadwell was behind the allegedly harassing emails that sparked the investigation that uncovered the Petraeus affair.

That's not all. All your emails that are more than six months old are legally treated as online "storage" and accessible with a court order or a subpoena to the online service provider. The providers can say no, but usually they don't. By contrast, listening in on someone's phone calls requires a warrant based on probable cause, along with a showing that the FBI has done everything else in their power to acquire the information they're seeking. Now that many people communicate more frequently via email and instant messages than via phone conversations, the difference in standards doesn't make much sense. Senator Patrick Leahy (D-Vt.) has proposed a bill that would subject requests for online communications to the same high standards required for tapping phones, but Congress doesn't seem all that interested in passing it yet.

[Read the full article]

Now That's What I Call Gerrymandering!

Americans didn't intend to elect a Republican majority to the House of Representatives. Thanks to GOP-engineered redistricting, they did.

—By Adam Serwer, Jaeah Lee, and Zaineb Mohammed

| Wed Nov. 14, 2012 4:03 AM PST

Americans woke up on November 7 having elected a Democratic president, expanded the Democratic majority in the Senate, and preserved the Republican majority in the House.

That's not what they voted for, though. Most Americans voted for Democratic representation in the House. The votes are still being counted, but as of now it looks as if Democrats have a slight edge in the popular vote for House seats, 49 percent-48.2 percent, according to an analysis by the Washington Post. Still, as the Post's Aaron Blake notes, the 233-195 seat majority the GOP will likely end up with represents the GOP's "second-biggest House majority in 60 years and their third-biggest since the Great Depression."

So how did Republicans keep their House majority despite more Americans voting for the other party—something that has only happened three times in the last hundred years, according to political analyst Richard Winger? Because they drew the lines.

After Republicans swept into power in state legislatures in 2010, the GOP gerrymandered key states, redrawing House district boundaries to favor Republicans. In Pennsylvania, Democratic candidates received half of the votes in House contests, but Republicans will claim about three-quarters of the congressional seats. The same is true in North Carolina. More than half the voters in that state voted for Democratic representation, yet Republicans will fill about 70 percent of the seats. Democrats drew more votes in Michigan than Republicans, but they'll take only 5 out of the state's 14 congressional seats.

"Partisans manipulate the process to their advantage," says Sundeep Iyer of the Brennan Center, a left-leaning public policy group which has been pushing for redistricting reform to limit partisan gerrymandering. "Not only did redistricting make it easier for Republicans to keep control of Congress this election," Iyer and his colleague Keesha Gaskins wrote at the Brennan Center's website, "but it also may have made it easier for them to keep control over the next decade." (My colleague Nick Baumann warned of exactly this two years ago.)

Republicans point to Illinois and Maryland as examples of Democrats playing the same game, and it is true that Democrats in those states drew maps favorable to their interests. In Maryland, Democrats got 62 percent of the combined vote in House races and 88 percent of the congressional seats; in Illinois they won 54 percent of the vote and about two-thirds of the congressional seats.

"It's difficult to take all of the politics out of the process," Iyer admits. But he points to two methods states have used to mitigate partisanship in redistricting. In California, an outside commission was adopted to handle the redistricting process. In Florida, voters approved a ballot measure that alters the state constitution so as to prevent lawmakers from drawing the lines in a way that would "favor or disfavor an incumbent or political party." If the maps violate the amendments, they can be challenged in state court and possibly declared unconstitutional.

These measures have had limited impact. Iyer pointed to a recent article in ProPublica that showed that in California, "Democrats managed to find a way to manipulate the process even though partisans weren't overtly involved." According to ProPublica, California Democrats "surreptitiously enlisted local voters, elected officials, labor unions and community groups to testify in support of configurations that coincided with the party’s interests," going so far as to invent "a local group to advocate for the Democrats' map." And in Florida, Democrats won nearly half the House race votes but will fill about a third of the state's congressional seats. Believe it or not, Iyer says, that's actually an improvement.

Redistricting only happens once every 10 years. So Americans may have to learn to live with a Republican House, no matter how they vote.

Graphic production by Jaeah Lee

The New Flyover Country

—By Adam Serwer

| Tue Nov. 13, 2012 4:03 AM PST

President Barack Obama defeated Mitt Romney by assembling a coalition of unprecedented diversity—in an electorate that was 72 percent white, 44 percent of Obama voters were not. But in the dull lexicon of Washington political reporters, a rich, NPR-listening white liberal remains the favored stereotypical shorthand for a Democratic voter.

For example, in an otherwise interesting piece about the right's media bubble, Politico describes Obama's coalition as more ominvorous in its media appetites because "there are as many, if not more, NPR-oriented liberals as MSNBC devotees on the left; the Democratic media ecosystem is larger and more diverse." So when summing up the media appetites of the most diverse electoral coalition in American history, Politico's two examples are liberals who watch NPR and liberals who watch MSNBC. That's when they're being polite. If they're trying to affect a derisive tone they might go with "the coffee-drinking NPR types of Seattle, San Francisco and Madison, Wis."

The NPR stereotype itself is overblown—liberals make up 36 percent of the NPR audience, while 39 percent consider themselves moderates and 21 percent conservatives. NPR's audience is more highly educated than the country as a whole, but the candidate who won Americans without a college degree was Barack Obama. In real life, NPR's journalism just also isn't liberal.

More importantly, the notion that people with liberal or left-of-center views are all NPR devotees is a right-wing meme the mainstream media has mindlessly parroted for years. I suspect why this happens because the upper-middle-class liberals in the DC metro area are the Obama voters Beltway reporters frequently come in contact with. That's why much of the national media's image of the quintessential Obama voter remains some yuppie with a taste for gourmet coffee. There is no room in that political shorthand for the retired black Marine in Ohio who knocked on doors for the Obama campaign, or the Latina mom who stood in line for hours—at three different times—just to be able to cast a ballot. The working-class people of color who now make up much of the base of the Democratic Party often seem as invisible to political media as they were to the Romney campaign, which the New York Times described as being shocked that the Obama operation turned out "voters they never even knew existed."

You can almost understand the Romney campaign's surprise. The national media doesn't talk to these voters much—they work hard and play by the rules but were never the group that politicians used to refer to as "working hard and playing by the rules," because before Obama, only white people were described that way. Political consultants never refer to them in cute, condescending shorthands like "soccer moms" or "NASCAR dads." They may drink beer, but they're never the folks who the reporters mean when they talk about "Joe Sixpack." They drive our buses, care for us when we're sick, clean our hotel rooms, teach our children, cook our meals, answer our noise complaints, and much more. Their political views aren't discussed or explored so much as summed up as a matter of "demographics," as though their votes were settled by genetics rather than individual agency. They are the new "flyover country," except they're not so much flown over as invisible to the people who rely daily on their labors. The political press often lacks the vocabulary to describe them, and until last week they could be safely disregarded.

That's no longer true. But a political press used to communicating the soul of America in tired metaphors meant to paint a superficial portrait of a certain kind of working-class white voter from the South or Midwest is ill-equipped to tell you about them. References to NPR and lattes won't cut it, not that they ever did.