ECPA Amendments and Privacy in a Post Petraeus World

One of the issues making the rounds like wildfire today was a report from Declan McCullagh at CNET regarding certain proposed amendments to the Electronic Communications Privacy Act (ECPA). The article is entitled “Senate Bill Rewrite Lets Feds Read Your E-mail Without Warrants” and relates:

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.)

This sounds like the predictably craven treachery that regularly comes out of Senate, indeed Congressional, legislation on privacy issues. And exactly what many had hoped would cease coming out of Washington after the public scrutiny brought on by the Petraeus/Broadwell/Kelley scandal. And, should these amendments make it into law, they may yet prove detrimental.

But there are a couple of problems here. First, as Julian Sanchez noted, those abilities by the government already substantially exist.

Lots of people RTing CNET’s story today seem outraged Congress might allow access to e-mail w/o warrant—but that’s the law ALREADY!

Well, yes. Secondly, and even more problematic, is Pat Leahy vehemently denies the CNET report. In fact, Senator Leahy does not support broad exemptions for warrantless searches for email content. A source within the Judiciary Committee described the situation as follows:

The CNET story reports as if the Chairman is offering an amendment to that end, which is not the case. What is pending before the committee is a substitute bill, HR 2471, that seeks to update pieces of the Electronic Privacy Communications Act and the Video Privacy Protection Act. The committee adopted that substitute in September, and will resume marking it up next week.

And that comports with the press release Senator Leahy issued later in the afternoon. Included in the press release is a section by section breakdown of what Leahy really has in mind trying to get out of committee and to the floor; it is not long and worth a look. While it does not go nearly far enough, there are some decent steps in Leahy’s proposed ECPA Amendment. The Title I changes regarding video tapes will not do a lot in the ever more digital streaming world, but the Title II proposals by Leahy do make some substantive improvements. It is, as they say, a start.

There should, however, be more, much more, added protection to citizen’s electronic privacy. Here is a comprehensive report from the Congressional Research Service just a week and a half ago entitled Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions that demonstrates what the government is going to do to protect itself. But what will the government do to protect you?

You would think the entitled royalty of the Washington DC Beltway would have had a wake up call as to just how little privacy American citizens have in their electronic communications as a result of the broad spider webbing of information the FBI sucked in on potentates such as David Petraeus, Gen. John Allen and supposed security expert Paula Broadwell. Not just collecting the information, but backtracing it to specific computers, users, and whatever location the users were at any given time. But that is not really the case. As Adam Serwer said:

If the director of the CIA can’t keep his private life secret from the FBI, you can’t either.

It is stunning what the government can get with effectively no process at all from providers; even more what they can get with common administrative bench subpoenas. All that is without a court supervised warrant. This report details the more than 300 different modalities of Federal administrative subpoena permitted by existing law. Couple that with an all too often rubber stamp traditional warrant process, and there is not much restraint on the government probing your deepest facets of electronic life.

The video above is a little longer than normal at 16 minutes, but it is a well paced look at Why Privacy Matters and has many people you will recognize in it. Privacy does matter.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
5 replies
  1. marksb says:

    “If the director of the CIA can’t keep his private life secret from the FBI, you can’t either.”

    When you become part of the CIA you give up your right to a certain level of privacy. You can expect to be snooped to verify your integrity. And in this case, P4 should have been snooped, yes?

    But all citizens who do not carry TS clearance or do not have warrant-level suspicions should be able to depend on the government being the party who defends their privacy, not the party violating it.

  2. rg says:

    @marksb: No. “When you become X, you give up your right to Y.” So let the exceptions begin. What exactly is a right, but a standard of conduct demanded by a society? We have a system of exceptions for special occasions, such as investigations of improper conduct, whether by private individuals or public officials, that involve court supervised warrants. Thus having a clearance, being a Muslim, a foreigner, black, or any other “sort” is not acceptable grounds for abridgment of one’s rights, no matter who or what you are.

  3. marksb says:

    @rg: Sorry, I may have not stated that well…no judgment regarding this being acceptable was intended.
    I’m just saying that a long time ago in a government office far far away, I was issued a top secret clearance and given a set of security guidelines. I was also told that there were folks around that trolled the holders of TS clearances for violations and that this was the only way they could verify that no secrets were finding their way, through purposeful or accidental means, to the “other side”, which in my case–being during the cold war–meant The Evil Empire. I would think that working in the CIA, especially in a leadership capacity, means folks are tasked with running down potential leaks and with digging around to find stuff that compromises the integrity of the security system. The director of the CIA could expect that some access to his private communications would fit his status.
    Perhaps this is wrong, but if my memory serves me this is just the way it’s always been done. The snooping tools are far more sophisticated now, which perhaps exposes more of the Generals private communications.

  4. lefty665 says:

    @marksb: Seems like you’ve got it about right. Don’t want the intrusiveness, don’t request the clearance. The searches are consensual, they come with the territory.

    When getting or renewing a clearance, in addition to what you describe, one can expect people to be asking relatives, neighbors, co-workers, former employers, schools, ex’s a lot of very personal questions. Personal finances get a pretty good working over too, especially how they correlate to lifestyle and sources of income. The above includes both the person being cleared and at least immediate family members.

    Looks like the original decision to investigate Kelley’s complaint was sketchy. It might not have happened if her buddy, Mr. Shirtless FBI man, had not had his thumb on the scale. But once they fingered Broadwell, so proud of her Lt. Col.(R) status and “SCI+” clearance, they had to proceed. When that exposed her relationship with “Diddling Dave” it would have been dereliction not to open all the doors and look in all the cupboards and closets.

    But you knew all that already.

  5. Eric Hodgdon says:

    So, why is there a Need for these surveillance law changes and in the first place? Who is afraid and why? Paranoia in government? Busy work? Bureaucracy!

    As rg said, “We have a system of exceptions for special occasions,…”

    Too many exceptions and special laws to protect those in government, such as the special laws regarding the Executive, police, etc. These people choose their line of work.

    Is risk in public service to be protected, while wrongdoing goes unpublishable?

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