Sunday, November 18, 2012

When There is No "There" There

Holder Defends Investigation of Petraeus:

The FBI started its case in June with a collection of five e-mails, a few hundred kilobytes of data at most.

By the time the probe exploded into public view earlier this month, the FBI was sitting on a mountain of data containing the private communications — and intimate secrets — of a CIA director and a U.S. war commander. What the bureau didn’t have — and apparently still doesn’t — is evidence of a crime.

How that happened and what it means for privacy and national security are questions that have induced shudders in Washington and a queasy new understanding of the FBI’s comprehensive access to the digital trails left by even top officials.

FBI and Justice Department officials have vigorously defended their handling of the case. “What we did was conduct the investigation the way we normally conduct a criminal investigation,” Attorney General Eric H. Holder Jr. said Thursday. “We follow the facts.”
LOL. Except for the "fact" that there were no facts and there was no crime. The FBI should never have been involved in this case in any capacity whatsoever. 
A criminal inquiry into e-mail harassment morphed into a national security probe of whether CIA Director David H. Petraeus and the secrets he guarded were at risk. After uncovering an extramarital affair, investigators shifted to the question of whether Petraeus was guilty of a security breach.

When none of those paths bore results, investigators settled on the single target they are scrutinizing now: Paula Broadwell, the retired general’s biographer and mistress, and what she was doing with a cache of classified but apparently inconsequential files.

On Capitol Hill, the case has drawn references to the era of J. Edgar Hoover, the founding director of the FBI, who was notorious for digging up dirt on Washington’s elite long before the invention of e-mail and the Internet.

What's so outrageous about this case is that the FBI was only involved in the matter because the middle aged agent who started the investigation did it as a favor to some Tampa "socialite" who he sent a shirtless picture of himself to (which has been labelled as "just a joke"...snicker).

To put it another way, if you or I were receiving harassing emails and we called the FBI they'd laugh and hang up. Your local PD might do something about it, but most likely your internet service provider would look into the matter.  This only became a "federal case" because the socialite was connected.

But what it has blown into is an egregious over-reach of federal law enforcement, and yet another example of the astonishing incompetence of the Attorney General. An AG who thinks "national security" investigations don't need to be brought to the attention of the president, the congress, or anyone else.

It is, at the end of the day, an extension of the long-running feud between the FBI/Justice Department and the CIA that dates back to Watergate, if not further. It was basically Mueller/Holder's chance to sandbag the CIA director for what is turning out to be nothing more than lousy behavior. And they used every available tool necessary to make sure Petraeus got run (btw, I'm no fan of the general).
Law enforcement officers conducting a legal search have always been able to pursue evidence of other crimes sitting in “plain view.” Investigators with a warrant to search a house for drugs can seize evidence of another crime, such as bombmaking. But the warrant does not allow them to barge into the house next door.

But what are the comparable boundaries online? Does a warrant to search an e-mail account expose the communications of anyone who exchanged messages with the target?

The scope of the issue is considerable, because the exploding use of e-mail has created a new and potent investigative resource for the FBI and other law enforcement agencies. Law enforcement demands for e-mail and other electronic communications from providers such as Google, Comcast and Yahoo are so routine that the companies employ teams of analysts to sort through thousands of requests a month. Very few are turned down.
And that's part of the problem, dating back to the bad old days of 9/11 and the broad powers the government demanded from internet service providers in the name of "national security." Frankly, most of these demands for email and other forms of electronic communications should be turned down barring court-ordered (thus proved) mandates, but the Patriot Act took court-approval out of the ball game.

As it stands now, all law enforcement does is ask and the ISP delivers mounds of data on the user.
Once Broadwell was identified, FBI agents would have gone to Internet service providers with warrants for access to her accounts. Experts said companies typically comply by sending discs that contain a sender’s entire collection of accounts, enabling the FBI to search the inbox, draft messages and even deleted correspondence not yet fully erased.

“You’re asking them for e-mails relevant to the investigation, but as a practical matter, they let you look at everything,” said a former federal prosecutor who, like many interviewed for this article, spoke on the condition on anonymity because the FBI inquiry is continuing.

FBI agents can then roam through every corner of the account as if it were their own.

Law enforcement officials said the FBI never sought access to Allen’s computer or accounts. It’s unclear whether it did so with Petraeus. But through Kelley and Broadwell, the bureau had amassed an enormous amount of data on the two men — including sexually explicit e-mails between Petraeus and Broadwell and questionable communications between Allen and Kelley.

Petraeus and Broadwell had tried to conceal their communications by typing drafts of messages, hitting “save” but not “send,” and then sharing passwords that provided access to the drafts. But experts said that ruse would have posed no obstacle for the FBI, because agents had full access to the e-mail accounts.
None of which, folks, is a crime. None of it. Sexually explicit emails between persons who are having an affair are no more a crime than some middle-aged dude taking shirtless pictures of himself and sending them to friends (and Florida socialites...snicker).
There is nothing illegal about the Petraeus-Broadwell affair under federal law. Were it not for Petraeus’s prominent position, the probe might have ended with no consequence. But because of his job — and the concern that intelligence officers caught in compromising positions could be susceptible to blackmail — the probe wasn’t shut down.

“If this had all started involving someone who was not the director of the CIA . . . they would have ignored it,” said David Sobel, senior counsel for the Electronic Frontier Foundation, a privacy group. “A bell went off because of who it was.”

That consideration triggered a cascade of additional quandaries for the Justice Department, including whether and when to notify Congress and the White House. The FBI finally did so on election night, Nov. 6, when Deputy Director Sean Joyce called Petraeus’s boss, Director of National Intelligence James R. Clapper Jr.
Again, my problem isn't so much with Mueller as it is Holder. His astonishing incompetence continues to boggle the mind. And while I'm no fan of congressional investigations, I think this case calls for a full-blown accounting of the Justice Department, its "leader", and the Bureau's protocols that brought down Petraeus.

UPDATE: SocProf at Global Sociology continues the riff in a great post called "Of Prudes and Panty-Sniffers."

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