WASHINGTON – The FBI started its case in June with a collection of five emails, 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 Holder said Thursday. We follow the facts.
But in this case, the trail cut across a seemingly vast territory with no clear indication of the boundaries, if any, that the FBI imposed on itself. The thrust of the investigation changed direction repeatedly and expanded dramatically in scope.
A criminal inquiry into email harassment morphed into a national security probe of whether CIA Director David 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 email and the Internet.
The expansive data that is available electronically now means that when you’re looking for one thing, the chances of finding a whole host of other things is exponentially greater, said Rep. Adam Schiff, D-Calif., a member of the House intelligence committee and a former federal prosecutor.
In this case, Schiff said, the probe may have caused more harm than it uncovered. It’s very possible that the most significant damage done to national security was the loss of Gen. Petraeus himself, Schiff said.
The investigation’s profile has called attention to what legal and privacy experts say are the difficulties of applying constraints meant for gathering physical evidence to online detective work.
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.
What are the comparable boundaries online? Does a warrant to search an email account expose anyone who exchanged messages with the target?
Similarly, FBI agents monitoring wiretaps have always been obligated to put down their headphones when the conversation is clearly not about a criminal enterprise. It’s known as minimization, a process followed by intelligence and law enforcement agencies to protect the privacy of innocent people.
It’s harder to do with emails, because unlike a phone, you can’t just turn it off once you figure out the conversation didn’t relate to what you’re investigating, said Michael DuBose, a former chief of the Justice Department’s Computer Crime and Intellectual Property Section.
It’s unclear whether the FBI made any attempt to minimize its intrusion into the emails exchanged by Broadwell and Petraeus. The scope of the issue is considerable because the exploding use of email has created a new and potent investigative resource for the FBI and other law enforcement agencies. Law enforcement demands for email and other electronic communications from providers such as Google, Comcast and Yahoo are now so routine that the companies employ teams of analysts to sort through thousands of requests a month. Very few are turned down.
President Obama said last week that there was no evidence at this point, from what I’ve seen, that classified information was disclosed that in any way would have had a negative impact on our national security.
But the data assembled on Allen and Petraeus continue to reverberate. The FBI turned over its stockpile of material on Allen – said to contain as many as 30,000 pages of email transcripts – to the Defense Department, prompting the Pentagon inspector general to start an investigation.
The CIA has also launched an inspector general investigation into Petraeus and his 14-month tenure at the agency, seeking to determine, among other things, whether he used the perks of the position to enable his affair with Broadwell.
If it follows its own protocols, the FBI will hold on to the data for decades. Former officials said the bureau retains records for 20 years for closed criminal investigations, and 30 years for closed national security probes.