Leahy scuttles his warrantless e-mail surveillance bill

After public criticism of proposal that lets government agencies warrantlessly access Americans' e-mail, Sen. Patrick Leahy says he will "not support" such an idea at next week's vote.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
Sen. Patrick Leahy won't support warrantless e-mail access, although an aide said only broad exceptions were off the table. U.S. Senate

Sen. Patrick Leahy has abandoned his controversial proposal that would grant government agencies more surveillance power -- including warrantless access to Americans' e-mail accounts -- than they possess under current law.

The Vermont Democrat said today on Twitter that he would "not support such an exception" for warrantless access. The remarks came a few hours after a CNET article was published this morning that disclosed the existence of the measure.

A vote on the proposal in the Senate Judiciary committee, which Leahy chairs, is scheduled for next Thursday. The amendments were due to be glued onto a substitute (PDF) to H.R. 2471, which the House of Representatives already has approved.

Leahy's about-face comes in response to a deluge of criticism today, including the American Civil Liberties Union saying that warrants should be required, and the conservative group FreedomWorks launching a petition to Congress -- with more than 2,300 messages sent so far -- titled: "Tell Congress: Stay Out of My Email!"

A spokesman for the senator did not respond to questions today from CNET asking for clarification of what Leahy would support next week. (We'll update this article if we receive a response.)

A Democratic aide to the Judiciary committee did, however, tell CNET this afternoon that Leahy does not support broad exceptions for warrantless searches of e-mail content.

A note from Leahy's Twitter account added: "Technology has created vacuum in privacy protection. Sen. Leahy believes that needs to be fixed, and #ECPA needs privacy updates." That's a reference to the 1986 Electronic Communications Privacy Act, which currently does not require that police always obtain a warrant for the contents of e-mail and other communications.

This revised position will come as a relief to privacy advocates and business lobbyists, who have been scrambling since last week to figure out how to respond to Leahy's revamped legislation. Some portions would have imposed new restrictions on law enforcement, while others would lessen existing ones, making the overall bill unpalatable to many groups.

The Center for Democracy and Technology, which is coordinating an industry coalition pressing for surveillance reforms, said today that: "We wouldn't support the rewrite described in CNET." (Members of the 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.)

Leahy's proposal would have allowed over 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 without a search warrant. It also would have given 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.

That was 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. He 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, has publicly warned that requiring a warrant to obtain stored e-mail could have an "adverse impact" on criminal investigations.

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 still looming over Web companies, and the reviled Protect IP Act. 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 introduced significant portions of the Patriot Act under the name Enhancement of Privacy and Public Safety in Cyberspace Act (PDF) a year earlier.

Here's more reaction to Leahy's proposed changes:

  • Executives at DataFoundry, a provider of data center services in Austin, Tex., said the proposed changes were an unacceptable breach of Fourth Amendment protections against unreasonable search and seizure.

    Ronald Yokubaitis, co-CEO of Data Foundry, said giving the government near-unchecked authority to search consumer information stored in the cloud would destroy confidence in cloud-based services and encourage more businesses to move overseas, where protections are greater.

    "If this language comes in, we are opposed to the bill," Yokubaitis said. "It will kill cloud computing."

  • Several members of the coalition contacted by CNET today reiterated support for the September version of Leahy's amendment, which included a warrant provision. An Intel spokeswoman forwarded a letter in support of the earlier version of the legislation, adding: "Our position of support for the warrant requirement is unchanged."
  • Kim Hart, a spokeswoman for Neustar, also endorsed the September version of the measure.

    "As a member of the Digital Due Process coalition, we supported Senator Leahy's original legislation," she said in an e-mail. "We have not yet had the opportunity fully to consider revisions to the legislation, though our experience has been that Senator Leahy addresses these difficult issues in a thoughtful and balanced way."

CNET's Casey Newton contributed to this story.

Updated at 5:09 p.m. PT with more reaction to the proposed amendments.