Privacy SOS

This is what happens when the FBI is almost totally unrestrained

When the mighty fall on their own sword, let the lesson be that no one is immune from the violations that result from the degradation of the rule of law.

We now know that no one is safe from the surveillance state’s omnipresent eye — not even those who rule it. If you’ve been away from the internet or hiding under a rock all weekend, you’ll have missed the still-unfolding spy drama involving a shirtless FBI agent, a fawning official biographer turned lover, a military general fallen from great heights, a Tampa socialite and the commander of the war in Afghanistan. You can catch up here. In short: the FBI snooped around in some emails and found out that the now former Director of the CIA was sleeping with his biographer. He resigned in disgrace at the end of last week.

Observers unaccustomed to talking about these issues are pointing out what has been obvious to many of us in the civil liberties community for some time: the surveillance state is totally out of control. Scandals like this put the problem in sharp relief for a nation that would, it appears, rather pretend we do not face a privacy crisis in America in 2012 — or tell itself dangerous and fictional stories about how the grave threats we face require the elimination of our personal privacy. 

The surveillance state stands before us naked, and it’s hard not to be taken aback by its  obscenity.

But it isn't all bad. Indeed, as Glenn Greenwald wrote today, we should relish in these rare moments of candor. When the architecture of the machine is pointed at those who hold the levers of power, the establishment suddenly pays attention to the scourge of unchecked government surveillance that has for more than a decade been squarely directed at us — the people. It isn’t a new story. Time and time again, lawmakers and the corporate press become acutely — unusually — interested in the underbelly of the rapidly advancing surveillance state when members of their ranks (the powerful) are targeted.

Plenty of people are saying plenty of smart things about the details of the scandal, which are still emerging and seem to change every twenty minutes. I don’t want to rehash any of that, but instead point out something that I’ve yet to see noted elsewhere, but is at the heart of what happened here — if we are to believe the version of events presented in the press.

According to those public accounts, the FBI began poking around in Petraeus biographer Paula Broadwell’s private correspondence after a Tampa socialite tipped off an FBI agent friend of hers about “threatening” emails. But the emails weren’t threatening at all, “a knowledgeable source” told the Daily Beast. Even though it appears as if no crime had been committed, and that the emails were more of the pestering than threatening variety, the FBI began investigating anyway, setting off a chain of email investigations that would ultimately result in the discovery of the Petraeus-Broadwell affair and then the end of the four-star general’s career.

People have failed to adequately interrogate the FBI’s powers here. The scandal is not simply that the FBI agents involved got a little too excited and took off investigating harmless, non criminal conduct. The scandal is that what they did was perfectly legal (according to the government) and within the official boundaries set forth to guide agents in their domestic investigations. 

How could the FBI open an investigation into someone against whom no criminal conduct was suspected or alleged? Thanks to the degradation of federal investigatory standards after 9/11, the FBI does not need to suspect that someone has committed a crime in order to investigate them. In fact, agents don’t need any reason whatsoever to start snooping around in your life. And thanks to statutes like the USA Patriot Act, once the feds start investigating you, they have a whole toolbox of powers they can deploy to find out who you are talking to, where you go and have travelled, and when — all without a whiff of judicial oversight or approval. It appears as if that’s exactly what happened in the Broadwell affair.

What’s most important about this scandal bears repeating: The FBI doesn’t need to have a good reason to spy on you, or any reason at all. And once an agent puts you in her crosshairs, she has an incredibly dangerous amount of power to dig around in your life, absent any outside checks to ensure that the investigation is a good use of resources or doesn’t unnecessarily invade the target’s personal privacy.

How did this happen? In 2008 the federal government issued new investigations guidelines for federal agents, enabling them to snoop around in your private life without so much as a whiff of a criminal predicate. Then things just got worse.

In 2011, the Obama administration further loosened the rules governing federal investigatory techniques for domestic inquiries. Astoundingly, it did so just two months after Charlie Savage of the NYT revealed that the already disastrous 2008 guidelines (called the “Domestic Investigations Operations Guidelines” or DIOGs) had resulted in predictable abuse. The NYT records showed that when agents are allowed to investigate whomever they want without restriction, they end up wasting resources and likely needlessly violating Americans’ privacy. 

Data obtained by the NYT showed that between December 2008 and March 2009, the FBI had initiated 11,667 proactive “assessments” of people and groups involving database searches, interviews, infiltration, following and photographing targets and the use of informants. (Again, zero predicate is required in order to open an “assessment” into someone — agents likely opened one into the allegations of threatening emails made by Ms. Kelley, the Tampa socialite.) Of those nearly twelve thousand initial inquiries, only 427 went on to the more intensive “preliminary” or “full” investigation stage during this four month period.

In other words, less than five percent of the “assessments” the FBI opened during that period led to full on investigations — let alone to arrests or convictions. But while those investigations never led to any useful criminal prosecutions that got dangerous people off our streets, they likely did amass troves of personal information in the FBI’s vaults — information that will likely remain for decades to come, where it will be  accessed in future, pointless, privacy-invasive investigations.

The Broadwell affair shows what happens when the rules meant to protect we the people from unchecked government power are stripped so far down to the bone. The scandal is the definition of a law enforcement fishing expedition. Begun on grounds that appear to be totally nonsense, the investigation sprawled outward — growing wider and wider for no apparently good reason, taking down generals and embarrassing an entire regime in its wake.

The system is truly out of control. Thanks to this nonsense, made for television FBI-CIA-military sex drama, people are starting to realize it. Silly as it is, we need to use the scandal as an opportunity to highlight the crisis we have allowed to unfold on our watch: the FBI has way too much power. Period.

It’s time to roll back the post-9/11 assault on our liberty. A good place to start would be repealing the Patriot Act and restoring a criminal predicate requirement for federal investigations. At the very minimum, the government should have some evidence that we’ve engaged in criminal activity before it digs around in our emails or searches through our personal belongings. And once it starts digging, it should be required to show that evidence to a judge who can issue an independent verdict as to whether or not the government has a good reason to invade our privacy.

Perhaps now that he has found himself on the receiving end of these incredibly dangerous powers, General Petraeus will join the ACLU and millions of freedom loving Americans in calling for the return of the core legal protections that separated us from history’s most abusive regimes. 

UPDATE: A clarification is in order. When I write that what the FBI did here was "legal," I mean it is legal according to the government — that the federal government has asserted that these powers are lawful. I'm not saying I agree. Also, as @bmaz observes, the FBI indeed may have violated its own guidelines at some point during the sprawling investigation. That's possible, but we don't know that happened and even if it did, my original point stands: the initial assessment that started this mess would not have been allowed if the FBI was restricted to investigating crimes or people agents can reasonably assert are linked to criminal activity. The absence of a criminal predicate requirement enabled agents to start digging around into these people's private lives. If the DIOGs requried a criminal predicate, that never would have happened.

© 2021 ACLU of Massachusetts.