When a newspaper dredged up the video rental history of Robert Bork in 1987, the U.S. Supreme Court nominee became the catalyst for Congress to shield the privacy of everyday Americans against what a ubiquitous new technology — home movie players — could reveal about them.

Now enter David Petraeus and his email account. The FBI unearthed the former CIA director’s embarrassing scandal through electronic tracking and surveillance techniques that prompted American Internet users to ponder: If this guy can’t maintain his privacy online, who can?

The Petraeus affair has put him in the center of a debate over privacy and cyberstalking laws and the limits of law enforcement’s reach into data contained in computers and smartphones. “It may just be the Petraeus scandal puts a face on it,” said Chris Calabrese, legislative counsel for the American Civil Liberties Union (ACLU) in Washington. “We’re seeing what all these new records can reveal.”

The Petraeus scandal might also shape how the U.S. Department of Justice interacts with other branches of the government during investigations involving high-level administration officials, according to former DOJ and White House officials. Leading members of Congress already recognized the threats the Internet poses to privacy; the Senate and House Judiciary committees staged hearings this year into topics including how social-media sites like Facebook make it hard for users to control how much they share publicly, and how facial-recognition software might curtail civil liberties.

The Electronic Communications Privacy Act hasn’t been updated since 1986 — long before email, the Internet and smartphones. At the same time, business and personal sharing leaves trails of data around the digital world, and privacy advocates say the Petraeus scandal shows how exposed those data are to law enforcement scrutiny.

In the Petraeus case, the FBI was able to unmask the source of threatening emails sent to a Petraeus family friend, Jill Kelley — it was his biographer, Paula Broadwell. Moreover, the investigation revealed an extramarital affair between Petraeus and Broadwell that had ended months earlier, even though they had taken steps to hide their digital tracks.

As details of the FBI investigation techniques emerged via news reports, the ACLU warned that the government can pierce online anonymity without ever having to obtain the permission of a neutral judge. And the open-ended nature of the FBI’s investigation — starting with a cyberstalking complaint and spiraling from there — highlighted the serious dangers inherent in laws that sweep too broadly in their attempt to identify threats, the ACLU said.

“We all have email; the things that are revealed in our emails may not be national news, but they would be news in our lives,” Calabrese said. “If our employers find out, they could have real negative consequences for us.”


Senator Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, is pushing legislation that would require law enforcement agents to obtain search warrants before accessing email or other electronic files. Notably, he has attached it to a bill that would update the 1988 Video Privacy Protection Law — the one sparked by the revelation about Bork’s rental history.

The committee plans to continue marking up Leahy’s bill during its next executive business meeting on November 29. An aide said Leahy would not comment on the Petraeus investigation or whether it would affect the legislation. “Senator Leahy remains committed to updating the Electronic Communications Privacy Act to ensure the nation’s privacy laws keep pace with rapid changes in technology and meet the needs of law enforcement to do their work in the digital age,” the aide said.

The Justice Department has opposed efforts to require search warrants for emails — in testimony on Capitol Hill last year, associate deputy attorney general James Baker said that would “compromise our ability to protect the public from the real threats we face,” including from hackers and identity thieves.

Other privacy-related legislation is pending. The incoming chairman of the House Judiciary Committee, Representative Bob Goodlatte (R-Va.), supports the Geolocational Privacy and Surveillance Act, which would protect digital trails left by smartphones. And last month, Representative Edward Markey (D-Mass.) introduced the Mobile Device Privacy Act in response to reports that smartphone software was logging every keystroke and sending it back to the software companies without users’ permission.

There definitely will be more congressional inquiries into how the FBI and Holder handled the inquiry that went public with Petraeus’ resignation on November 9, said Robert Raben, a former Hill counsel and assistant attorney general who founded The Raben Group, a policy and lobbying firm.

This is Attorney General Eric Holder’s first experience during the Obama administration with an investigation of a high-level official — a situation, Raben said, that can inspire posturing between the branches of government over whether and how to share information.

He also predicted congressional debate about a 2007 memorandum by then-Attorney General Michael Mukasey detailing DOJ policy on divulging investigative information to the White House and Congress. Those rules are “relatively untrammeled,” Raben said.

The Mukasey memo, issued following the U.S. attorneys-firing scandal, reminded employees that contacts with the White House and Congress about pending criminal matters were not allowed, The Wall Street Journal reported. “I think what members will be wrangling with…is the Mukasey rules and whether or not they work,” Raben said. “Then you get to the politics, and who knew what when.”

Holder knew that Petraeus had been linked to an FBI investigation as far back as late summer, but President Obama learned of the affair on the morning of November 8, following the presidential election, according to the Journal.

A number of congressional intelligence leaders, including Senate Select Committee on Intelligence chairwoman Dianne Feinstein (D-Calif.), fumed to reporters that they hadn’t heard about the probe until Obama had accepted Petraeus’ resignation. She has vowed to investigate who decided to shield that information.

But during a press conference on November 14, Obama defended the investigating agencies. “You know, one of the challenges here is that we’re not supposed to meddle in, you know, criminal investigations, and that’s been our practice,” Obama said.

“And, you know, I think that there are certain procedures that both the FBI follow or DOJ follow when they’re involved in these investigations,” he continued. “That’s traditionally been how we view things, in part because people are innocent until proven guilty and we want to make sure that we don’t pre-judge these kinds of situations.”

Todd Ruger can be contacted at truger@alm.com.