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
bmaz @cocktailhag There's not going to be enough of them.
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bmaz @RKTlaw I doubt that, I think they will want to end the issue one way or another, but it is possible.
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bmaz @RKTlaw Heh, at this rate, there may never be a circuit split and they just sit back and let it happen.
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bmaz @RKTlaw Maybe, but there seems to be scant few below that want to go there anymore. It is amazing.
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bmaz The snowball in favor of marriage and LGBT equality in American courts is amazing. Who will the the last judge to endorse the bigotry?
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JimWhiteGNV RT @bmaz: This new state court decision by Judge Zabel deeming FL SSM ban unconstitutional is really something beautiful http://t.co/KrMHDa
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JimWhiteGNV RT @mattduss: Bibi lied. People died. http://t.co/9i85wpDxuy
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bmaz This new state court decision by Judge Zabel deeming FL SSM ban unconstitutional is really something beautiful http://t.co/KrMHDawncQ
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bmaz @AllThingsHLS @gregpmiller In some fairness, most said deals involved traditional cooperation agreements, something not really applic to ES
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bmaz @AllThingsHLS @gregpmiller Yeah, but contrary to govt claim it never happens, Ive cut deals for extraterritorial return before; best option.
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emptywheel Did David Sanger just ignore the French and Israelis, who like China, steal commercial data?
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bmaz .@gregpmiller That's alright, Ledgett was fairly disingenuous about the "offer" in the first place. Never more than press fodder.
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July 2014
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