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 @GabeSehr Speaking of which is Gabbard sticking around? And note how McKeon cut the time for these junior vets?
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emptywheel @GabeSehr That would be stupendously bad briefing if it were true. Seems like the first thing you'd brief, given the topic!
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emptywheel @lisapease Online yes, not sure abt TV.
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emptywheel @GabeSehr Think Mayville somehow didn't think Duckworth was gonna ask hard questions.
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emptywheel Duckworth: You're not ruling out turning to a Blackwater for logistics? Mayville: No discussions BEYOND how we as military would do this.
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emptywheel @GabeSehr Thanks. Bad transcription on my part.
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emptywheel Correx on my transcription RT @GabeSehr: I think the said “No discussions *beyond* how we as a military would do this.”
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emptywheel @copiesofcopies My WAG is they're for URL searches, but that's why I'd love legal discuss of how much cloud data they could get @csoghoian
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emptywheel @copiesofcopies So 1) Something they couldn't get court to approve NSL 2) indiv app 3) So much data FISC imposed Min Procedures @csoghoian
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emptywheel @copiesofcopies My understanding of Internet co 215 orders revealed in IG report they're individualized. Requiring indiv apps. @csoghoian
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emptywheel Duckworth: Are we relying on contractors or covert ops (for larger support). Mayville: We are looking at all options.
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emptywheel Duckworth asks why not start w/support of peshmerga and instead fund Syrian rebels. Good question.
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