Democrat Senator Patrick Leahy has rewritten a bill H.R. 2471, that’s already been approved by the U.S. House of Representatives. Leahy’s revision would empower the federal government to read our email without warrants, thereby violating the Fourth Amendment to the U.S. Constitution, which guarantees citizens’ right to be free from unreasonable government intrusion into their persons, homes, businesses, and property — whether through police stops of citizens on the street, arrests, or searches of homes and businesses.
To make this even more diabolical, Leahy is touting his revision as protecting Americans’ email privacy! Can they be more in-your-face than this?
The revised bill is scheduled for a vote next week. Let your representatives and senators know you are against this!!!!
To find your reps and senators, go here.
Vermont Democrat Sen. Patrick Leahy
Declan McCullagh reports for CNET.com, Nov. 20, 2012:
A Senate proposal touted as protecting Americans’ e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law.
CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail, is scheduled for next week.
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 without a search warrant. 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 the revised draft from a source involved in the negotiations with Leahy.)
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.
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.”
Leahy had planned a vote on an earlier version of his bill, designed to update a pair of 1980s-vintage surveillance laws, in late September. But after law enforcement groups including the National District Attorneys’ Association and the National Sheriffs’ Association organizations objected to the legislation and asked him to “reconsider acting” on it, Leahy pushed back the vote and reworked the bill as a package of amendments to be offered next Thursday. The package (PDF) is a substitute for H.R. 2471, which the House of Representatives already has approved.
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.
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. [...]
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 perused by the FBI, “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. [...]
This is a bitter setback for Internet companies and a liberal-conservative-libertarian coalition, which had hoped to convince Congress to update the 1986 Electronic Communications Privacy Act to protect documents stored in the cloud. Leahy glued those changes onto an unrelated 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 first to report on the coalition’s creation.) [...]
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 Court ruled that police needed a search warrant for GPS tracking of vehicles. Some courts have ruled that warrantless tracking of Americans’ cell phones, another coalition concern, is unconstitutional.The FBI and other law enforcement agencies already must obtain warrants for e-mail in Kentucky, Michigan, Ohio, and Tennessee, thanks to a ruling by the 6th Circuit Court of Appeals in 2010.