Privacy is among the many issues raised by the Petraeus affair. We don’t know exactly what the FBI did, or what sort of legal barriers they had to surmount to get access. Reporter Peter Maass wrote that an unexpected consequence of Petreaus’s fall is that we all might learn a little more about how the FBI operates. Brooke spoke with Maass about an unlikely connection between the Petraeus scandal and former Supreme Court Nominee Robert Bork.
BROOKE GLADSTONE: Among the many issues raised by the Petraeus affair is privacy. As best we can tell, the FBI accessed electronic communications from the main players, Petraeus, Broadwell, General John Allen and the Floridian friend of generals, Jill Kelley. We don’t know exactly what the FBI did or what sort of legal barriers they had to surmount to get access. Reporter Peter Maass wrote on the ProPublica and New Yorker websites that an unexpected consequence of Petronius' fall is that we all might learn a little more about how the FBI operates, and maybe, just maybe, see a few more protections put in place. To make his case, Maass points to the fallout from the invasion of privacy endured by Supreme Court Nominee Robert Bork in 1987.
PETER MAASS: And one of the things that happened during his nomination battle is that a enterprising reporter for a Washington city paper went to Bork's local video rental place and went to the assistant manager and said I’m working on a story about Robert Bork, we’re interested to see what videos he’s rented out from you.
BROOKE GLADSTONE: The assistant manager said, sure, I’ll go look and, apparently, he’d rented 146 movies, and they are wholesome features, and there’s a lot of Meryl Streep and Bette Midler.
PETER MAASS: But, as the reporter Michael Dolan wrote in his story, despite what all you pervs were hoping, there’s not an X in the bunch and hardly an R.
BROOKE GLADSTONE: [LAUGHS] Nevertheless, even though it was an empty vault for news, it did lead to be swift passage of the Video Privacy Protection Act in 1988.
PETER MAASS: Within months the bill to basically protect against this kind of thing happening to any American was being debated and then it was approved, which basically made it illegal for companies to give away lists of sales or rentals of videos to any person, any business, without the express consent of their customer.
BROOKE GLADSTONE: Except for law enforcement, and only then with an appropriate warrant.
PETER MAASS: Exactly.
BROOKE GLADSTONE: Do we really need to speculate as to why this law was passed so quickly?
PETER MAASS: We don’t need to speculate because we pretty much know, because this is a case where one of the political elite in Washington was really kind of blasted by a privacy violation, and the political elite in Washington were really afraid of this, and they didn’t want this to happen to them,
BROOKE GLADSTONE: So what’s all this got to do with the electronic communications between Petraeus and Broadwell and Liz Kelley and General Allen?
PETER MAASS: Congress has been really reluctant in the last decade to consider or pass any significant privacy protection law because there hasn't been very much of a constituency for it. The ACLU and organizations like it, as active and vociferous as they are on these issues, do not have as much sway in Washington as perhaps they’d like. So really, there hasn't been much action at all. But now you have one of Congress's own, Petraeus, not a member of Congress, of course, but he is part of the political elite, one of their own has been hit quite substantially by the lack of privacy protections.
BROOKE GLADSTONE: In your piece, you talk about prior efforts of the ACLU and the Electronic Frontier Foundation to request information or file lawsuits that could determine the extent of the government surveillance powers. What have they learned?
PETER MAASS: One of the really frustrating things, and this is very much a part of the Petraeus situation right now, is that we don't actually know what kind of information was accessed, with what warrants, if any, and what sorts of legal oversight were involved. And that's why these lawsuits are filed, to get more information about what are the legal guidelines of the FBI files? These are lawsuits that are not just kind of about, you know, trying to disclose information, but whether or not it is constitutionally legal for the FBI and other law enforcement agencies to go after all this information. These are questions that did not exist 15 years ago because these technologies did not exist. So in this void of legislation, in this void of Supreme Court verdicts, the FBI and other law enforcement agencies really have a very easy time t getting a huge amount of data, if they want it.
BROOKE GLADSTONE: Okay, so if the Supreme Court has yet to offer a comprehensive answer, you suggest that as in the situation following the exposure of the Bork video list, Congress may find that it's within its interest to act swiftly.
PETER MAASS: This Petraeus saga could be the kind of Eureka moment - and, of course “could” is an important word to emphasize here, but everybody in Congress has to realize that they could be the next Petraeus or Bork, because the FBI has the power to rummage through anybody's e-mail with a semi-legitimate excuse. And so, if you're sitting in Congress now and you realize, because of what’s happened to David Petraeus, of all people, that it can happen to anybody, including you, you have a little bit more incentive to maybe do something to tighten the screws on more privacy protection in America because you realize like, you know, hey, what's in my inbox?
BROOKE GLADSTONE: [LAUGHS] Peter, thank you very much.
PETER MAASS: Thank you.
BROOKE GLADSTONE: Peter Maass writes on digital security for ProPublica. His article on the Petraeus saga appears on the websites of ProPublicaand The New Yorker.