Privacy issues in the Petraeus affair
Some very interesting reconsideration of the powers granted to authorities under the Patriot Act in connection with privacy. First, there’s Glenn Greenwald in The Guardian:
The Petraeus scandal is receiving intense media scrutiny obviously due to its salacious aspects, leaving one, as always, to fantasize about what a stellar press corps we would have if they devoted a tiny fraction of this energy to dissecting non-sex political scandals (this unintentionally amusing New York Times headline from this morning – “Concern Grows Over Top Military Officers’ Ethics” – illustrates that point: with all the crimes committed by the US military over the last decade and long before, it’s only adultery that causes “concern” over their “ethics”). Nonetheless, several of the emerging revelations are genuinely valuable, particularly those involving the conduct of the FBI and the reach of the US surveillance state.
As is now widely reported, the FBI investigation began when Jill Kelley – a Tampa socialite friendly with Petraeus (and apparently very friendly with Gen. John Allen, the four-star U.S. commander of the war in Afghanistan) – received a half-dozen or so anonymous emails that she found vaguely threatening. She then informed a friend of hers who was an FBI agent, and a major FBI investigation was then launched that set out to determine the identity of the anonymous emailer.
That is the first disturbing fact: it appears that the FBI not only devoted substantial resources, but also engaged in highly invasive surveillance, for no reason other than to do a personal favor for a friend of one of its agents, to find out who was very mildly harassing her by email. The emails Kelley received were, as the Daily Beast reports, quite banal and clearly not an event that warranted an FBI investigation:
“The emails that Jill Kelley showed an FBI friend near the start of last summer were not jealous lover warnings like ‘stay away from my man’, a knowledgeable source tells The Daily Beast. . . .
“‘More like, ‘Who do you think you are? . . .You parade around the base . . . You need to take it down a notch,'” according to the source, who was until recently at the highest levels of the intelligence community and prefers not to be identified by name.
“The source reports that the emails did make one reference to Gen. David Petraeus, but it was oblique and offered no manifest suggestion of a personal relationship or even that he was central to the sender’s spite. . . .
“When the FBI friend showed the emails to the cyber squad in the Tampa field office, her fellow agents noted the absence of any overt threats.
“No, ‘I’ll kill you’ or ‘I’ll burn your house down,” the source says. ‘It doesn’t seem really that bad.’
“The squad was not even sure the case was worth pursuing, the source says.
“‘What does this mean? There’s no threat there. This is against the law?’ the agents asked themselves by the source’s account.
“At most the messages were harassing. The cyber squad had to consult the statute books in its effort to determine whether there was adequate legal cause to open a case.
“‘It was a close call,’ the source says.
“What tipped it may have been Kelley’s friendship with the agent.”
That this deeply personal motive was what spawned the FBI investigation is bolstered by the fact that the initial investigating agent “was barred from taking part in the case over the summer due to superiors’ concerns that he was personally involved in the case” – indeed, “supervisors soon became concerned that the initial agent might have grown obsessed with the matter” – and was found to have “allegedly sent shirtless photos” to Kelley, and “is now under investigation by the Office of Professional Responsibility, the internal-affairs arm of the FBI”.
[The New York Times this morning reports that . . .
And also Peter Maas reports in ProPublica and the New Yorker:
In 1987, when Judge Robert Bork was enmeshed in a partisan struggle over his Supreme Court nomination, a reporter for an alternative weekly in Washington, D.C., got a tip that the judge was a patron of a local video store. Michael Dolan went to Potomac Video, in the western corner of the capital, and asked the assistant manager for a list of videos the judge had checked out. “Cool,” theassistant manager said. “I’ll look.”
Dolan’s subsequent story, published in the Washington City Paper, caused a sensation, though not because of the judge’s taste in videos, which, it turned out, was unremarkable. There were 146 rentals in less than two years, including lots of Hitchcock and Bond, as well as movies featuring Meryl Streep and Bette Midler. As Dolan wrote, “Despite what all you pervs were hoping, there’s not an X in the bunch, and hardly an R.”
After a bitter fight, the Senate rejected Bork’s nomination. One thing everyone agreed on, however, was that Bork’s privacy had been invaded. In 1988, Congress passed the Video Privacy Protection Act, making it illegal to release video lists without a customer’s consent to anyone but law enforcement, and then only with an appropriate warrant. It is reasonable to note that the unusually rapid congressional action was perhaps aimed at protecting the privacy of Legislator X as much as Citizen Y. If a reporter could easily get the judge’s video list, a senator’s list would not be much harder to get, and would probably be a lot more lively.
Will the scandal surrounding David Petraeus, General John Allen, Paula Broadwell, Jill Kelley, and a shirtless F.B.I. agent turn into the same sort of eureka moment that Congress experienced when Bork was, as the saying now goes, “borked”? Although the lustful portion of the Petraeus scandal is hardly disappearing — who else will be drawn into it, and when will we read the emails? — attention is turning toward the apparent ease with which the F.B.I. accessed the electronic communication of Petraeus, Broadwell, Kelley, and Allen. The exact circumstances of how the F.B.I. got its hands on all this material remains to be revealed — for instance, whether search warrants were obtained for everything — but the bottom line appears to be that the F.B.I. accessed a vast array of private information and seriously harmed the careers of at least Petraeus and Broadwell without, as of yet, filing a criminal complaint against anybody. As the law professor and privacy expert James Grimmelmann tweeted the other day, “The scandal isn’t what’s illegal; the scandal is what’s legal (or what the FBI thinks is legal).” . . .