Proposed Senate Bill Allows Feds to Read Email by canttakesky

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Proposed Senate Bill Allows Feds to Read Email

POSTED BY: CANTTAKESKY
UPDATED: Thursday, November 22, 2012 17:27
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Tuesday, November 20, 2012 10:07 AM

http://news.cnet.com/8301-13578_3-57552225-38/senate-bill-rewrite-lets
-feds-read-your-e-mail-without-warrants/?part=rss&subj=news&tag=title

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.

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 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.)

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.

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 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.

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 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.)

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.
An excerpt from Leahy's revised legislation authorizing over 22 federal agencies to obtain Americans' e-mail without a search warrant signed by a judge.

An excerpt from Leahy's revised legislation authorizing over 22 federal agencies to obtain Americans' e-mail without a search warrant signed by a judge. Click for larger image.

But he also authored the 1994 Communications Assistance for Law Enforcement Act, which is now looming over Web companies, as well as 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.

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 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.

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Tuesday, November 20, 2012 10:48 AM

BYTEMITE

They already have warrantless access to emails, but they have to be six months old. I guess they figured that six months thing was a liability.

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Tuesday, November 20, 2012 2:47 PM

RIONAEIRE

Beir bua agus beannacht

Speaking of slippery slopes ...

"A completely coherant River means writers don't deliver" KatTaya

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Tuesday, November 20, 2012 3:59 PM

FREMDFIRMA

Oh I am gonna get some popcorn for this one.

Me, I am bettin on Rotenberg at four-to-one, he will absolutely kick Leahys ass.

Thing about it is, after bumrushing many of the established authoritarian types out of office (and frankly, were it not for some really over-the-top gerrymandering, the Dems would have both house and senate) most of the Democratic party is a wee bit skittish about immediately emulating the conduct of the bastards who just got punted - not that they would mind DOING it, it's just a matter of waiting for the temperature to cool off before trying to boil the frogs again, you see.
Which means he ain't gonna get too much support for this right now, especially since he tried to do it all sneaky-like and now it's been outed to the media, a hot potato nobody in their right mind wants to stand there holding.

And that means his only hope of garnering support for it is to suck up to the other side, which *will* get him thoroughly excoriated when the old excuses for this kind of thing fail in the face of a suspicious, cynical populace with an ever increasing awareness of just how important keeping the slimy hands of government off the internet and related communications really is - all the while with EPIC putting boot to ass about it along with the less savory folks who value privacy as well, and if you REALLY wanna break his support just point out to those moral-majority hypocrites he will be shilling to that it opens THEIR email up to this as well, potentially exposing their own shady conduct, and suddenly they'll get all interested in privacy rights all quick like.

I bet right now there's a substantial percentage of Democratic congresscritters doing a facepalm and groaning "Leahy, you IDIOT!"... given that he's pissing away whatever post-elective political capital and credibility they may have gained by trying to double down on a notion guaranteed to provoke a maelstrom of angry resistance from both ends of the political spectrum.

-Frem

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Wednesday, November 21, 2012 11:28 AM

JONGSSTRAW

I always reckoned that my e-mails and website visits could be read any time someone wanted to. CIA, FBI, NSA, FDLE, my wife.... I don't worry about it.

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Thursday, November 22, 2012 5:27 PM

FREMDFIRMA

Leahy scuttles his warrantless e-mail surveillance bill
http://news.cnet.com/8301-13578_3-57552687-38/leahy-scuttles-his-warra
ntless-e-mail-surveillance-bill/

Quote:
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.

Toldja So.

-Frem

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