Sen. Patrick Leahy

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 Think ACLU is reverse-dragnetting Feds. They're going to join challenges in every Circuit until they defeat dragnet. http://t.co/73WE3aIAkO
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emptywheel @billmon1 Somehow Cass did not search for the root of Israeli support for violence against Palestinian targets. @MonaHol
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emptywheel @MonaHol Don't worry. Cass Sunstein has solution for what he describes as Palestinians' support for violence v Israel http://t.co/fQc01eJw1I
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emptywheel So you see, Judge Lynch seems to have a better sense of dangers of 215 dragnets, realized or possible, than Congress.http://t.co/1sThyDhdM5
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emptywheel And here's 215 order they used to get financial records in 2010. http://t.co/uYB8jrq2jg As w/phone dragnet, claim RFPA doesn't exclude it.
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emptywheel So there is ZERO doubt DOJ thinks they can use 215 to get credit card records. Question is only whether and how they use it.
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emptywheel Zoe Lofgren also got James Cole to confirm they could use Section 215 to get credit card records. http://t.co/m61oynzsar
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emptywheel Here's DAG James Cole not denying they could get credit card records using Section 215. http://t.co/ei1RbJHOQz
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emptywheel @tresec29 Football wins and jersey sales are for him, though.
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emptywheel @Pachacutec_ What do they call themselves?
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emptywheel @Pachacutec_ Maybe Texas' many prominent closet cases will support him.
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emptywheel RT @AdamSchefter: To be clear, Dallas would like to sign Michael Sam to practice squad, not active roster. First things first. Physical Wed…
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