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 technologyhome movie playerscould 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 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 such as Facebook make it hard for users to control how much they share publicly and how facial-recognition software might curtail civil liberties.
Updating the legislation
The Electronic Communications Privacy Act hasn't been updated since 1986long 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 Lawthe one sparked by the revelation about Bork's rental history.