The resignation of CIA Director David Petraeus, after a cyberharassment investigation brought his affair with biographer Paula Broadwell to light, has generated a fascinating upsurge in privacy worries. (Side note: I believe “working with my biographer” has now superseded “hiking the Appalachian Trail” as the top euphemism for infidelity). Orin Kerr has an excellent summary and tick-tock over at Volokh Conspiracy, and Chris Soghoian has a nice combination of technical and legal analysis in his role as the ACLU’s chief geek. However, there has also been a wave of somewhat frantic op-eds about the matter. The New York Times has one that never really nails down exactly what the problem or threat is, for example. And top billing goes to CNN’s hyperbolic commentary by Naomi Wolf. (Law students reading this post may find it a worthwhile exercise to try to list all of the legal errors in Wolf’s “analysis.”) I not only think the privacy worries are overblown – I don’t think they exist. Here’s why.
First, Wolf’s delusions about the Patriot Act aside, law enforcement followed the rules carefully, as far as we know. They seem to have obtained a warrant for access to Broadwell’s e-mail account. And their lining up other details – for example, identifying Broadwell herself – followed standard investigative technique. I know of no proposition for the authority that one has a privacy interest in records that one stayed in a particular hotel, or gave a speech about one’s new book in a particular city. Similarly, one has no privacy interest in the IP data by which an e-mail message is routed to its destination (even if one does have such an interest in its content – which would vanish once the recipient shares it).
Second, there has been criticism that Jill Kelley obtained, essentially, special treatment from the FBI in looking into her cyberharassment investigations. The privileges of power and access are always troubling, and always with us. However, nearly everyone agrees that cyberharassment is underinvestigated and the laws criminalizing it are underenforced. On what basis would we critique an effort – even if mounted for dubious reasons, or on an unequal basis – to increase enforcement? Put differently, should we let Kelley be harassed simply because less powerful women are, too? That hardly seems principled.
Third, whatever one’s views of marital infidelity, it is hardly unjust – let alone a privacy violation – for the CIA to seek to enforce its rules regarding disclosure of extramarital affairs. Petraeus faced little to no threat of a court-martial under the Uniform Code of Military Justice. Nor is it at all likely that a foreign intelligence service would seek to blackmail or recruit him based on an illicit affair. (The media has consistently gotten this wrong. Really, foreign spies are going to compromise *the CIA director*? This is not Hollywood.) The real risk here is someone else: recruitment of Broadwell. Given her overreaction to the evanescent risk that Kelley would reveal their affair, such a possibility is, at minimum, cognizable. And as regards Petraeus, if the CIA is to enforce its disclosure rules (which are entirely sensible, particularly for lower-ranking personnel) with any consistency, its leadership, too, must face the same responsibilities.
I’ll be candid: the privacy community has a growing tendency to cry wolf. That is fine for advocates, but it risks conflating real issues and threats (warrantless wiretapping, use of drones domestically, surveillance for national security purposes domestically) with sensational but meaningless media events. The privacy fears in the Petraeus case boil down to two objections. First, many (including Google and others) think that the current federal wiretapping statute (the Electronic Communications Privacy Act) is outdated. Consider its weird 6-month rule for access to e-mail: under 6 months, get a warrant; over 6 months, a subpoena is enough. ECPA reform is entirely sensible, but law enforcement can hardly be accused of violating privacy when they carefully follow the laws as written. If you want the laws changed, that’s an entirely different claim – it’s normative, not descriptive. Distinguish the world you want from the world you live in.
The second objection is basically the right not to have embarrassing details about one’s private life revealed. I don’t want law enforcement conducting witch hunts, either – the treatment of Martin Luther King, Jr., among others reveals that peril. But infidelity is risky in many ways: if you want to keep your affair private, sleep with someone who doesn’t cyberharass potential competitors. We want law enforcement to tackle harassment, not turn a blind eye to it. There is a duty to take privacy precautions as well as a duty to respect them. And, ironically, the source of the privacy outing was, ultimately, the very person Kelley turned to in order to initiate the investigation (a point hard to square with the claim of privilege). Petraeus and Broadwell were hardly careful: the stories of former staffers coming forward with suspicions, etc., are legion. Whether or not Petraeus should be forced from his job over an affair is one thing. But whether he should consider resigning for failing to follow his own agency’s rules is entirely another.
I’ll close with two points. First, as an outsider, I find privacy debates often frustrating. There’s rarely rigor to them. I’d love to see privacy advocates articulate clearly a theory of privacy, and then why a given event violates that theory. Simply assuming there’s some Platonic version of privacy out there to which we have ready recourse runs in the face of serious efforts by people like Dan Solove and Anita Allen to construct just such a careful edifice. Privacy frankly needs much less advocacy and much more hard thinking. Second, the one troubling aspect of the Petraeus affair is political: the FBI agent whom Kelley sought out seems to have alerted the Republican leadership in the House of Representatives to his concerns, and to the facts of the case. (How ironic, since Petraeus was nosed about as a possible Republican presidential candidate.) Law enforcement and intelligence agencies only work when they are nonpartisan, and when they have integrity about keeping their processes confidential. We don’t yet know whether there is any possibility of whistleblowing here (it seems unlikely, since the investigation was proceeding apace), but how ironic that the one real privacy threat Petraeus faced was from political allies. Et tu, Brute?