The Surveillance State Takes Friendly Fire

[Eugen Leitl]

http://www.newyorker.com/online/blogs/newsdesk/2012/11/david-petraeus-and-the-surveillance-state.html

November 13, 2012

The Surveillance State Takes Friendly Fire

Posted by Patrick Radden Keefe

David Petraeus

Last March, in a speech he delivered at a gathering orchestrated by In-Q-Tel,
the venture-capital incubator of the Central Intelligence Agency, David
Petraeus, the Agencybs director, had occasion to ruminate on bthe utter
transparency of the digital world.b Contemporary spooks faced both challenges
and opportunities in a universe of bbig data,b but he had faith in the
bdiabolical creativityb of the wizards at Langley: bOur technical
capabilities often exceed what you see in Tom Cruise movies.b In the digital
environment of the twenty-first century, Petraeus announced, bWe have to
rethink our notions of identity and secrecy.b

For those of us who have been less bullish about the prospects of radical
transparency, the serialized revelations that have unfolded since Fridaybwhen
Petraeus, who left the military as a four-star general, resigned from the
C.I.A. because of an affairbare, to say the least, honeyed with irony. In the
decade following September 11, 2001, the national-security establishment in
this country devised a surveillance apparatus of genuinely diabolical
creativityba cross-hatch of legal and technical innovations that (in theory,
at any rate) could furnish law enforcement and intelligence with a
high-definition early-warning system on potential terror events. What itbs
delivered, instead, is the tawdry, dismaying, and wildly entertaining
spectacle that ensues when the national-security establishment inadvertently
turns that surveillance apparatus on itself.

Of course, right now, the events and personages joined in a scandal that has
already achieved an indelible Twitter monikerb#LovePentagonbare anything but
transparent: we donbt yet know the name of the zealous, shirtless F.B.I.
agent, or whether General John Allen sent thirty thousand pages of
binappropriateb e-mails to unpaid social liaison Jill Kelley, or merely
several hundred bflirtatiousb ones. But all this sordid laundry will come out
soon enough, in part because of the Rottweiler tenacity of those of us in the
press corps, but in part, also, because that is the nature of private affairs
in a digital age. Eventually, they outbor, as Petraeus observed at the
In-Q-Tel summit, bEvery byte left behind reveals information.b

It would appear that Petraeus and his
hagiographer-turned-running-mate-turned-mistress, Paula Broadwell, took
precautions to avoid discovery of their relationship. They maintained
multiple baliasb e-mail accounts and, according to the Associated Press, may
have borrowed a bit of tradecraft from the Al Qaeda playbookbsharing an
e-mail account, and saving messages for one another in a Draft folder, rather
than running the risk of sending bytes across the ether.

But if we know that kind of subterfuge is being used by terrorists, then itbs
almost axiomatically an inadequate counter-surveillance option. Itbs not yet
clear on precisely what legal authority the F.B.I. obtained access to
Broadwellbs e-mail, but under the relevant federal statute, the Electronic
Communications Privacy Act, the government need do little more than ask.
Originally passed in 1986, the law is notoriously outdated, and considers any
e-mail that is over a hundred and eighty days old to be babandoned,b meaning
that the author of the e-mail no longer has any reasonable expectation that
it would remain private. So to obtain access to this e-mail, the F.B.I.
doesnbt need a court order; it just needs to ask your e-mail provider. (To
obtain more recent e-mail, authorities do need a warrant from a judge.) There
is ample evidence that, in practice, this kind of broad authority has been
abused. In a series of reports between 2007 and 2010, the F.B.I.bs inspector
general has found that in seeking information from private communications
providers, agents have often violated their own internal rules and
guidelines, and have ensnared civilians who are only peripheral to their
searches.

In this instance, the peripheral civilian was the director of the C.I.A. The
picture of the F.B.I.bs investigation that emerges is one of a potential
abuse of authority and conflict of interest, but also of a concept that would
be quite familiar to Petraeusbmission creep. What began as a cyber-crime
investigation, initiated at the behest of an F.B.I. agent who was a friend of
Jill Kelley, morphs into a national-security investigation when it is
discovered that Broadwell is the one sending menacing e-mails, and that she
also happens to be consorting, sub-rosa, with Americabs top spy. When the
search moves on to Broadwellbs computer, what had become a national-security
investigation regarding the security of Petraeusbs e-mail morphs once again,
into an inquiry on the possible leaking of classified material. Meanwhile,
just as the all-seeing eye of the national-security bureaucracy bore into
Petraeusbs private affairs and turned up tawdry material, that same eye turns
back on the F.B.I. agent who initiated the investigation and finds that he,
too, is not without sin; that he has been sending photos of himself to
Kelley; that he is reportedly binfatuatedb with her and bobsessedb with the
case.

One day in the summer of 2011, I logged on to Facebook to discover a little
algorithmic suggestion that I become friends with Michael Hayden. This struck
me as funny, because several years earlier I had written a book about the
National Security Agency during Haydenbs tenure as its director, and his
office had stonewalled my repeated requests for an interview. I clicked on
his profile to see what was there, and found, to my surprise and delight,
that Mike Hayden, former head of the N.S.A. and C.I.A., retired four-star Air
Force general, had fallen behind on Facebookbs ever-shifting privacy
settings, and that his Wall, his friends, and his photos were all sitting
there for public examination. (Donbt bother lookingbsometime between that day
and when I checked this morning, Hayden seems to have gotten wise and hidden
or taken down the page.)

bMachines in the nineteenth century learned to do, and those in the twentieth
century learned to think at a rudimentary level,b Petraeus told the attendees
at the In-Q-Tel event. bIn the twenty-first century, they are learning to
perceivebto actually sense and respond.b When all the lurid particulars have
finally been extracted, the Love Pentagon scandal will be memorialized in
Washington by blessons learnedb postmortems and bafter action reports.b (This
story is a mine-field of double-entendres.) Our bureaucrats will ponder the
threshold at which the F.B.I. should inform Congress about the
national-security implications of an investigation, the perils of the more
extreme forms of access journalism, perhaps even the efficacy of the Vow of
Monogamy enshrined in the Uniform Code of Military Justice. But our
spymasters should give some thought as well to how it feels to be thoroughly
and mercilessly laid bare at the hands of a legal and technological
surveillance apparatus that is their own creation.

Photograph by Adam Ferguson/The New York Times/Redux.