Declan McCullagh

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: Continue reading

Emptywheel Twitterverse
emptywheel @theurbansherpa What?!?!?! No closets? Where do I put my bogeymen?
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bmaz @JoshMBlackman The extremely disappointing part is when Obama dipped back in that pool second time, he chose Kagan over the superior Wood
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emptywheel @dametzger Hmm. Works for me. You not getting to the site?
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emptywheel @onekade Why do you say that?
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emptywheel Maybe NSA “Moonlighting” Is Another Name for “Public-Private Partnership”? https://t.co/c1MYKUsMJy Sounds like a great way to sheep dip.
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emptywheel @onekade But yes, hiring Judy Clarke makes it clear this is headed to LWOP.
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emptywheel @onekade It's a terrorism trial. Even in Boston, juries don't actually require convincing proof (cf Methanna).
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emptywheel @RupertStone83 Hmm. Shouldn't be the browser then.
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emptywheel @RupertStone83 What browser?
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emptywheel @RupertStone83 Nope. What are you getting?
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emptywheel "Financial rocket science" prevented us fr prosecuting bank crimes. Under CryptoWar logic, shouldn't we eliminate it? http://t.co/sovt5FrG2e
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emptywheel @JasonLeopold Yeah, but that's just doing explicitly what they've already been doing.
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October 2014
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