Revisions to a proposed Senate bill stirred public outcry last week. Senator Patrick Leahy, Chairman of the Senate Judiciary Committee, has been leading an effort to update federal surveillance laws that date back to the 1980’s. The 1986 Electronic Communications Privacy Act (ECPA) did not anticipate the rise of social media or cloud-based storage. Currently, the law does not require law enforcement agencies to obtain a warrant to search email and other electronic communication. At the time the ECPA was originally penned, email messages left on service providers’ servers were considered discarded messages and could be searched much the same way a trash can out in the open can be searched. Declan McCullagh, writing for CNet, says, “at the moment, Internet users enjoy more privacy rights if they store data on their hard drives or under their mattresses.”
When the Senate Judiciary Committee first began working to update ECPA, Leahy was particularly vocal about protecting the privacy of Americans’ electronic communications. The Vermont Democrat boasted last year that his bill “provides enhanced privacy protections for American consumers by… requiring that the government obtain a search warrant.” But as his first version of the new Senate bill drew closer to a vote in September, the Justice Department and other law enforcement groups strenuously objected to the bill. James Baker, the associate deputy attorney general, has publicly warned that requiring a warrant to obtain stored e-mail could have an “adverse impact” on criminal investigations.
Under this pressure, Senator Leahy began a quite revision of the bill that would reshape his legislation in response to law enforcement concerns.
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.
When McCullah’s article went live last Tuesday morning, Senator Leahy was faced with a deluge of criticism, including the American Civil Liberties Union saying that warrants should be required, and the conservative group FreedomWorks launching a petition to Congress — with more than 2,300 messages sent so far — titled: “Tell Congress: Stay Out of My Email!”
Since the publication on CNet, Senator Leahy has backpedaled to his original stance on ECPA. His official twitter account was updated last week with the comment, “Technology has created vacuum in privacy protection. Sen. Leahy believes that needs to be fixed, and #ECPA needs privacy updates.”
The Senate Judiciary Committee is set to vote on the bill this Thursday, but as of the moment, there is a measure of doubt as to how much of our privacy will really be protected and how much latitude the government will still have when it comes to gaining access to our electronic communications.
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