The widening scandal involving the email of top military brass could further politicize an ongoing Senate effort to limit law enforcement access to consumers’ online data.
FBI officials accessed Gmail accounts that former CIA Director David H. Petraeus and his biographer Paula Broadwell used to communicate discreetly. The FBI also reportedly looked at email between Gen. John R. Allen and Jill Kelley, a Tampa woman.
Those revelations could complicate efforts by Senate Judiciary Chairman Patrick J. Leahy, D-Vt., to restrict police officers and federal investigators from looking at email and documents stored online without a warrant. He wants to extend the same protections that currently apply to information stored in paper files to data exchanged online by updating the 1986 Electronic Communications Privacy Act (PL 99-508).
Leahy pushed such a measure at a committee markup that began in September, and the markup is expected to resume during the lame-duck session. He introduced his proposal as an amendment to a separate pending bill (HR 2471) involving the privacy of video rental records.
Judiciary ranking member Charles E. Grassley, R-Iowa, objected to Leahy’s proposal in September because of how it might restrict law enforcement agencies in criminal investigations.
On Monday, Grassley launched an inquiry into the Petraeus scandal. He could use the FBI investigation to strengthen his argument for email access, which appears to be the central way that officials uncovered the affair between Petraeus and Broadwell and investigated whether it threatened classified information.
It remains unclear how the Leahy provision would have affected the FBI investigation into Petraeus, which at some point evolved from a harassment case into one concerning a security breach. The Leahy amendment would not affect exemptions already in place that allow law enforcement agencies to monitor emails in national security matters.
The FBI also obtained a warrant to monitor Broadwell’s Internet Protocol address, according to the Washington Post; that would have allowed the agency to access some of her emails even if the Leahy measure were law.
Leahy’s proposed privacy protections “wouldn’t have hindered law enforcement’s ability to crack this case,” said Greg Nojeim, senior counsel at the Center for Democracy and Technology, which supports the measure. “On the other hand, [the Petraeus scandal] has made a lot of people aware that the standards are very low and that maybe there ought to be a look at the statute and whether reforms are appropriate.”
Advocates for and against the Leahy amendment will likely attempt to draw on the national focus on the Petraeus affair and the latest revelations involving Allen, the U.S. commander in Afghanistan.
Privacy proponents can use the scandal to illustrate how current laws do not match consumers’ expectations of privacy when they use Internet programs. Law enforcement supporters can say the case highlights the importance of providing officials leeway to access data during criminal probes.
“He was just being naive,” James Lewis, of the Center for Strategic and International Studies, said of Petraeus. “Email is a postcard. You don’t know where it’s going and who is handling it.”
Lewis, who directs the center’s Technology and Public Policy Program, favors stronger privacy protections and said the Petraeus affair should strengthen the case for them. But he expressed skepticism about whether Leahy’s efforts will go far enough.
Current law protects the contents of most email and data transmitted online for 180 days by requiring law enforcement officials to obtain a search warrant, but some information—such as the sender and recipient—can be obtained more easily. Leahy seeks to require a warrant to access content no matter the time frame. His amendment would also require that the owner of the email account be notified of the search.
The Federal Law Enforcement Officers Association wrote a letter to Leahy and Grassley in September opposing the warrant requirement for accessing email, which the group called “overreaching.”
Staffers to Leahy and Grassley said they are working behind the scenes to find common ground that might help advance the measure. Groups pushing for strengthened privacy protections are hopeful they can strike a compromise.
“There are a lot of issues that will need to be worked out, but the first step is very clearly to establish them,” said Lee Tien, senior staff attorney for the Electronic Frontier Foundation.
The group launched a campaign last week with the Center for Democracy and Technology and other privacy advocates, including Internet companies, to get consumers involved in lobbying efforts for the Leahy amendment.
Tien said the crowded legislative agenda for the lame-duck session already made it unlikely the bill would reach the Senate floor, even before the Petraeus affair made national headlines. The groups see the potential markup of Leahy’s legislation as a conversation starter.
“At the very least, it sets the stage for next year,” said Berin Szoka, president of TechFreedom, which is also a member of the campaign to strengthen electronic privacy protections.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.