Senate bill rewrite lets feds read your e-mail without warrants

By Declan McCullagh | CNET.com – Tue, Nov 20, 2012

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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.)

Revised bill highlights

• Grants warrantless access to Americans' electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.
• Permits state and local law enforcement to warrantlessly access Americans' correspondence stored on systems not offered "to the public," including university networks.
• Authorizes any law enforcement agency to access accounts without a warrant -- or subsequent court review -- if they claim "emergency" situations exist.
• Says providers "shall notify" law enforcement in advance of any plans to tell their customers that they've been the target of a warrant, order, or subpoena.
• Delays notification of customers whose accounts have been accessed from 3 days to "10 business days." This notification can be postponed by up to 360 days.

It's an abrupt departure from Leahy's earlier approach, which required police to obtain a search warrant backed by probable cause before they could read the contents of e-mail or other 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."

Leahy had planned a vote on an earlier version of his bill, designed to update a pair of 1980s-vintage surveillance laws, in late September. But after law enforcement groups including the National District Attorneys' Association and the National Sheriffs' Association organizations objected to the legislation and asked him to "reconsider acting" on it, Leahy pushed back the vote and reworked the bill as a package of amendments to be offered next Thursday. The package (PDF) is a substitute for H.R. 2471, which the House of Representatives already has approved.

One person participating in Capitol Hill meetings on this topic told CNET that Justice Department officials have expressed their displeasure about Leahy's original bill. The department is on record as opposing any such requirement: 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.

Christopher Calabrese, legislative counsel for the American Civil Liberties Union, said requiring warrantless access to Americans' data "undercuts" the purpose of Leahy's original proposal. "We believe a warrant is the appropriate standard for any contents," he said.

An aide to the Senate Judiciary committee told CNET that because discussions with interested parties are ongoing, it would be premature to comment on the legislation.

Marc Rotenberg, head of the Electronic Privacy Information Center, said that in light of the revelations about how former CIA director David Petraeus' e-mail was perused by the FBI, "even the Department of Justice should concede that there's a need for more judicial oversight," not less.

Markham Erickson, a lawyer in Washington, D.C. who has followed the topic closely and said he was speaking for himself and not his corporate clients, expressed concerns about the alphabet soup of federal agencies that would be granted more power:

❝ There is no good legal reason why federal regulatory agencies such as the NLRB, OSHA, SEC or FTC need to access customer information service providers with a mere subpoena. If those agencies feel they do not have the tools to do their jobs adequately, they should work with the appropriate authorizing committees to explore solutions. The Senate Judiciary committee is really not in a position to adequately make those determinations. ❞

The list of agencies that would receive civil subpoena authority for the contents of electronic communications also includes the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, the National Labor Relations Board, and the Mine Enforcement Safety and Health Review Commission.

Leahy's modified bill retains some pro-privacy components, such as requiring police to secure a warrant in many cases. But the dramatic shift, especially the regulatory agency loophole and exemption for emergency account access, likely means it will be near-impossible for tech companies to support in its new form.

A bitter setback
This is a bitter setback for Internet companies and a liberal-conservative-libertarian coalition, which had hoped to convince Congress to update the 1986 Electronic Communications Privacy Act to protect documents stored in the cloud. Leahy glued those changes onto an unrelated privacy-related bill supported by Netflix.

At the moment, Internet users enjoy more privacy rights if they store data on their hard drives or under their mattresses, a legal hiccup that the companies fear could slow the shift to cloud-based services unless the law is changed to be more privacy-protective.

Members of the so-called Digital Due Process coalition include Apple, Amazon.com, Americans for Tax Reform, AT&T, the Center for Democracy and Technology, eBay, Google, Facebook, IBM, Intel, Microsoft, TechFreedom, and Twitter. (CNET was the first to report on the coalition's creation.)

Leahy, a former prosecutor, has a mixed record on privacy. He criticized the FBI's efforts to require Internet providers to build in backdoors for law enforcement access, and introduced a bill in the 1990s protecting Americans' right to use whatever encryption products they wanted.

But he also authored the 1994 Communications Assistance for Law Enforcement Act, which is now looming over Web companies, as well as the reviled Protect IP Act. An article in The New Republic concluded Leahy's work on the Patriot Act "appears to have made the bill less protective of civil liberties." Leahy had introduced significant portions of the Patriot Act under the name Enhancement of Privacy and Public Safety in Cyberspace Act (PDF) a year earlier.

One obvious option for the Digital Due Process coalition is the simplest: if Leahy's committee proves to be an insurmountable roadblock in the Senate, try the courts instead.

Judges already have been wrestling with how to apply the Fourth Amendment to an always-on, always-connected society. Earlier this year, the U.S. Supreme Court ruled that police needed a search warrant for GPS tracking of vehicles. Some courts have ruled that warrantless tracking of Americans' cell phones, another coalition concern, is unconstitutional.

The FBI and other law enforcement agencies already must obtain warrants for e-mail in Kentucky, Michigan, Ohio, and Tennessee, thanks to a ruling by the 6th Circuit Court of Appeals in 2010.

Related articles:

GOP flip-flops over supporting digital copyright reforms

Petraeus e-mail affair highlights U.S. privacy law loopholes

Senate readies for fight over cybersecurity surveillance

Should the government have access to your e-mail?

19,354 people have responded

96%

1%

1%

1%

1%

0%

No, it invades my privacy Yes, there are safety issues

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  Senate bill would let feds read your email
  The proposed privacy-protection law was quietly rewritten to allow warrantless surveillance
  
  

 

As you can see from above 96% of respondents didn't want the government reading their emails. So, my point of view is if you think that everyone on earth is reading your emails, maybe that's a good way to look at it. So, every time you write any email or phone text just imagine if everyone on earth was reading it too. This way you might be more careful how you say what you say. Not only that, since the 1960s anything you say on a phone likely was recorded too.  So, that is something to think about too. Nowadays, key words like "bomb", 'terrorist" or any other kind of scary word is going to flag anything you verbally say on any phone or any time you write about something like this. Knowing this might be helpful. Also, with present survellience techniques anything you say or do in your home or even in the wilds likely could be monitored as well. So, is there privacy anywhere? Probably not. So, maybe this is important for people to know worldwide. But, there are likely different levels of privacy around the world in different places you go. This is all a given. So, because of all this privacy is relative but never complete.  What does the world think about this? No one likes it. But even if you now took away the capacity for governments to do this criminals still would do it worldwide. So, if criminals are going to be looking at you going to the bathroom or in bed with your wife or lover, do you want the government to be looking at you too, legally? I think this is the real question now for everyone who lives in a democracy worldwide both now and into the future. The biggest problem with this: Actually, the biggest problem with all this is people's pocketbooks. Emails and texts and voice mails and phone conversations reveal much about how a person survives economically from their job to what they are doing on their job to what Ideas inventors have, to what new businesses they are starting and why. If the wrong people get wind of certain ideas they could be stolen by people and used against the innocent people trying to just survive economically. I see this as the biggest problem because it takes away livelihoods of people trying to survive worldwide. So, I'm stating here that the biggest problem of surveillance of all kinds is the theft of ideas, business practices and whole means of survival for individuals and groups worldwide. If you have legal surveillance millions and billions of people's lives will inevitably be economically destroyed directly as a result worldwide.