The Kelleys' Cautionary Tale: Electronic Privacy Matters

When Jill Kelley sought help from the FBI in the fall after receiving harassing e-mails, she had no idea that her trust in law enforcement would ultimately end in a loss of faith.

In November, Kelley and her husband, Scott, woke up to find themselves at the heart of a scandal that would ultimately lead to the resignation of CIA Director David Petraeus because of an extramarital affair with his biographer, Paula Broadwell, and engulf another high-ranking military official, U.S. Marine Gen. John Allen, in allegations of “inappropriate communications” with Mrs. Kelley. (Last night, the Pentagon’s Inspector General cleared Gen. Allen of all wrongdoing).

Beyond all the salacious details, which do not need to be rehashed here, lies the terrifying realization of our digital age: your personal information isn’t safe, even when it should be. “[T]he reality is that we sought protection, not attention, and received the inverse,” the Kelleys wrote in an op-ed yesterday for The Washington Post. The authorities they trusted turned their lives “upside down,” by leaking their names and the existence of electronic correspondence between Mrs. Kelley and Gen. Allen. Instantly, Kelley was called an adulteress. Reporters invaded the couple’s Tampa Bay property. Jill and Scott’s faces were permanent fixtures on cable news. Their privacy was destroyed.

The Kelleys' ordeal, however, has made them particularly sensitive to a fight the ACLU has been helping to wage for years: erecting new protections for American’s electronic communications. That fight, as the Kelleys explain, aims at modernizing the Electronic Communications Privacy Act (ECPA). Enacted in 1986, when cellphones were the size of your head, the law has not kept pace with technology and allows the feds to access citizens’ electronic communications under a far lower standard than physical mail, which requires a warrant.

In November, the Senate Judiciary Committee passed the Leahy Bill, which would have required the government to get a judicial warrant before accessing Americans’ private electronic communications. Unfortunately, the 112th Congress ended before it could move through both chambers. The ACLU will push for the reintroduction of the Leahy Bill and pressure the 113th Congress and the President to extend the same constitutional protections for American’s postal mail to their e-mail.

Privacy can sometimes seem like an abstract concept, but it’s essential, as the Kelleys now well know.

Our story stands as a cautionary tale. We have experienced how careless handling of our information by law enforcement and irresponsible news headlines endanger citizens’ privacy. We know our lives will never be the same, and we want to prevent others from having their privacy invaded merely for reporting abusive, potentially criminal, behavior. That is why we believe Congress must consider how the rights that we carefully safeguard in other forms deserve equal protection in this age of digital communication.

In a world where more and more people electronically communicate everything from the banal to their most personal desires, Congress must erect new protections for Americans’ electronic communications. The rights we’re guaranteed offline should apply online.

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