Senate bill rewrite lets feds read your e-mail without warrants
Proposed law scheduled for a vote next week originally increased Americans' e-mail privacy. Then law enforcement complained. Now it increases government access to e-mail and other digital files.
See also the follow-up story:
A Senate proposalas protecting Americans' e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law, CNET has learned.
Patrick Leahy, the influential Democratic chairman of the Senate Judiciary Committee, has dramatically reshaped his legislation in response to law enforcement concerns, according to three individuals who have been negotiating with Leahy's staff over the changes. A vote on his bill, which now authorizes scheduled for next week.to Americans' e-mail, is
Revised bill highlights
✭ Grants warrantless access to Americans' electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.
✭ Permits state and local law enforcement to warrantlessly access Americans' correspondence stored on systems not offered "to the public," including university networks.
✭ Authorizes any law enforcement agency to access accounts without a warrant -- or subsequent court review -- if they claim "emergency" situations exist.
✭ Says providers "shall notify" law enforcement in advance of any plans to tell their customers that they've been the target of a warrant, order, or subpoena.
✭ Delays notification of customers whose accounts have been accessed from 3 days to "10 business days." This notification can be postponed by up to 360 days.
Leahy's rewritten bill would allow more than 22 agencies -- including the Securities and Exchange Commission and the Federal Communications Commission -- to access Americans' e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.
CNET obtained a draft of the proposed amendments from one of the people involved in the negotiations with Leahy; it's embedded at the end of this post. The document describes the changes as "Amendments intended to be proposed by Mr. Leahy."
It's an abrupt departure from Leahy's earlier approach, which required police to obtain a search warrant backed by probable cause before they could read the contents of e-mail or other communications. The Vermont Democrat boasted last year that his bill "provides enhanced privacy protections for American consumers by... requiring that the government obtain a search warrant."
One person participating in Capitol Hill meetings on this topic told CNET that Justice Department officials have expressed their displeasure about Leahy's original bill. The department is on record as opposing any such requirement: James Baker, the associate deputy attorney general, hasthat requiring a warrant to obtain stored e-mail could have an "adverse impact" on criminal investigations.
Christopher Calabrese, legislative counsel for the American Civil Liberties Union, said requiring warrantless access to Americans' data "undercuts" the purpose of Leahy's original proposal. "We believe a warrant is the appropriate standard for any contents," he said.
An aide to the Senate Judiciary committee told CNET that because discussions with interested parties are ongoing, it would be premature to comment on the legislation.
Marc Rotenberg, head of the Electronic Privacy Information Center, said that in light of the revelations about how former CIA director David Petraeus' e-mail was , "even the Department of Justice should concede that there's a need for more judicial oversight," not less.
Markham Erickson, a lawyer in Washington, D.C. who has followed the topic closely and said he was speaking for himself and not his corporate clients, expressed concerns about the alphabet soup of federal agencies that would be granted more power:
There is no good legal reason why federal regulatory agencies such as the NLRB, OSHA, SEC or FTC need to access customer information service providers with a mere subpoena. If those agencies feel they do not have the tools to do their jobs adequately, they should work with the appropriate authorizing committees to explore solutions. The Senate Judiciary committee is really not in a position to adequately make those determinations.
The list of agencies that would receive civil subpoena authority for the contents of electronic communications also includes the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, the National Labor Relations Board, and the Mine Enforcement Safety and Health Review Commission.
Leahy's modified bill retains some pro-privacy components, such as requiring police to secure a warrant in many cases. But the dramatic shift, especially the regulatory agency loophole and exemption for emergency account access, likely means it will be near-impossible for tech companies to support in its new form.
A bitter setback
This is a bitter setback for Internet companies and a liberal-conservative-libertarian coalition, which had Congress to update the 1986 Electronic Communications Privacy Act to protect documents stored in the cloud. Leahy glued those changes onto an privacy-related bill supported by Netflix.
At the moment, Internet users enjoy more privacy rights if they store data on their hard drives or under their mattresses, a legal hiccup that the companies fear could slow the shift to cloud-based services unless the law is changed to be more privacy-protective.
Members of the so-called Digital Due Process coalition include Apple, Amazon.com, Americans for Tax Reform, AT&T, the Center for Democracy and Technology, eBay, Google, Facebook, IBM, Intel, Microsoft, TechFreedom, and Twitter. (CNET was the on the coalition's creation.)
Leahy, a former prosecutor, has a mixed record on privacy. He criticized the FBI's efforts to require Internet providers to build in backdoors for law enforcement access, and introduced a bill in the 1990s protecting Americans' right to use whatever encryption products they wanted.
But he also authored the 1994 Communications Assistance for Law Enforcement Act, which is Web companies, as well as the reviled . An article in The New Republic concluded Leahy's work on the Patriot Act "appears to have made the bill less protective of civil liberties." Leahy had significant portions of the Patriot Act under the name Enhancement of Privacy and Public Safety in Cyberspace Act (PDF) a year earlier.
One obvious option for the Digital Due Process coalition is the simplest: if Leahy's committee proves to be an insurmountable roadblock in the Senate, try the courts instead.
Judges already have been wrestling with how to apply the Fourth Amendment to an always-on, always-connected society. Earlier this year, the U.S. Supreme Courtthat police needed a search warrant for GPS tracking of vehicles. Some courts have ruled that warrantless tracking of Americans' cell phones, , is unconstitutional.
The FBI and other law enforcement agencies already must obtain warrants for e-mail in Kentucky, Michigan, Ohio, and Tennessee, thanks to aby the 6th Circuit Court of Appeals in 2010.
Updated at 5:00 p.m. PT with the proposed amendments, 4:28 p.m. PT to clarify sourcing and at 9:45 a.m. PT with additional details.
Here are the proposed amendments in question: