Online Privacy Issue Is Also in Play in Petraeus Scandal
dex.html> Scott Shane
NY Times: November 14, 2012
_bureau_of_investigation/index.html?inline=nyt-org> investigation that
toppled the director of the C.I.A.
_intelligence_agency/index.html?inline=nyt-org> and has
ked-to-petraeus-scandal.html?hp> now entangled the top American commander in
Afghanistan underscores a danger that civil libertarians have long warned
about: that in policing the Web for crime, espionage and sabotage,
government investigators will unavoidably invade the private lives of
On the Internet, and especially in e-mails, text messages, social network
postings and online photos, the work lives and personal lives of Americans
are inextricably mixed. Private, personal messages are stored for years on
computer servers, available to be discovered by investigators who may be
looking into completely unrelated matters.
In the current F.B.I. case, a Tampa, Fla., woman, Jill Kelley, a friend both
us/index.html?inline=nyt-per> H. Petraeus, the former C.I.A. director, and
Gen. John R. Allen, the top NATO commander in Afghanistan, was disturbed by
a half-dozen anonymous e-mails she had received in June. She took them to an
F.B.I. agent whose acquaintance with Ms. Kelley (he had sent her shirtless
photos of himself - electronically, of course) eventually prompted his
bosses to order him to stay away from the investigation.
But a squad of investigators at the bureau's Tampa office, in consultation
with prosecutors, opened a cyberstalking inquiry. Although that
investigation is still open, law enforcement officials have said that
criminal charges appear unlikely.
In the meantime, however, there has been a cascade of unintended
consequences. What began as a private, and far from momentous, conflict
between two women, Ms. Kelley and Paula Broadwell, Mr. Petraeus's biographer
and the reported author of the harassing e-mails, has had incalculable
The C.I.A. is suddenly without a permanent director at a time of urgent
intelligence challenges in Syria, Iran, Libya and beyond. The leader of the
American-led effort to prevent a Taliban takeover in Afghanistan is
distracted, at the least, by an inquiry into his e-mail exchanges with Ms.
Kelley by the Defense Department's inspector general.
For privacy advocates, the case sets off alarms.
"There should be an investigation not of the personal behavior of General
Petraeus and General Allen, but of what surveillance powers the F.B.I. used
to look into their private lives," Anthony D. Romero, executive director of
the American Civil Liberties Union, said in an interview. "This is a
textbook example of the blurring of lines between the private and the
Law enforcement officials have said they used only ordinary methods in the
case, which might have included grand jury subpoenas and search warrants. As
the complainant, Ms. Kelley presumably granted F.B.I. specialists access to
her computer, which they would have needed in their hunt for clues to the
identity of the sender of the anonymous e-mails. While they were looking,
they discovered General Allen's e-mails, which F.B.I. superiors found
"potentially inappropriate" and decided should be shared with the Defense
In a parallel process, the investigators gained access, probably using a
search warrant, to Ms. Broadwell's Gmail account. There they found messages
that turned out to be from Mr. Petraeus.
Marc Rotenberg, executive director of the Electronic Privacy Information
Center in Washington, said the chain of unexpected disclosures was not
unusual in computer-centric cases.
"It's a particular problem with cyberinvestigations - they rapidly become
open-ended because there's such a huge quantity of information available and
it's so easily searchable," he said, adding, "If the C.I.A. director can get
caught, it's pretty much open season on everyone else."
For years now, as national security officials and experts have warned of a
Pearl Harbor cyberattack that could fray the electrical grid or collapse
stock markets, policy makers have jostled over which agencies should be
assigned the delicate task of monitoring the Internet for dangerous
Advocates of civil liberties have been especially wary of the National
Security Agency, whose expertise is unrivaled but whose immense surveillance
capabilities they see as frightening. They have successfully urged that the
Department of Homeland Security take the leading role in cybersecurity.
That is in part because the D.H.S., if far from entirely open to public
scrutiny, is much less secretive than the N.S.A., the eavesdropping and
code-breaking agency. To this day, N.S.A. officials have revealed almost
nothing about the warrantless wiretapping it conducted inside the United
States in the hunt for terrorists in the years after 2001, even after the
secret program was
disclosed by The New York Times in 2005 and set off a political firestorm.
The hazards of the Web as record keeper, of course, are a familiar topic.
New college graduates find that their Facebook postings give would-be
employers pause. Husbands discover wives' infidelity by spotting
incriminating e-mails on a shared computer. Teachers lose their jobs over
impulsive Twitter comments.
But the events of the last few days have shown how law enforcement
investigators who plunge into the private territories of cyberspace looking
for one thing can find something else altogether, with astonishingly
Some people may applaud those results, at least in part. By having a secret
extramarital affair, for instance, Mr. Petraeus was arguably making himself
vulnerable to blackmail, which would be a serious concern for a top
intelligence officer. What if Russian or Chinese intelligence, rather than
the F.B.I., had discovered the e-mails between the C.I.A. director and Ms.
Likewise, military law prohibits adultery - which General Allen's associates
say he denies committing - and some kinds of relationships. So should an
officer's privacy really be total?
But some commentators have renewed an argument that a puritanical American
culture overreacts to sexual transgressions that have little relevance to
job performance. "Most Americans were dismayed that General Petraeus
resigned," said Mr. Romero of the A.C.L.U.
That old debate now takes place in a new age of electronic information. The
public shaming that labeled the adulterer in Nathaniel Hawthorne's "Scarlet
Letter" might now be accomplished by an F.B.I. search warrant or an N.S.A.
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