This morning a bombshell shook the civil liberties community. CNET journalist Declan McCullagh published a story stating that Senator Patrick Leahy -- probably our best hope for passing meaningful Electronic Communications Privacy Act (ECPA) reform -- had totally caved to a coalition of prosecutors and police and done away with the warrant requirement for email and other electronic communications.
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. This notification can be postponed by up to 360 days.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.)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."
But in a Tweet responding to a very angry civil liberties and online activist world in the wake of the CNET piece, Senator Leahy unequivocally said the story is false:
— Sen. Patrick Leahy (@SenatorLeahy) November 20, 2012
Kashmir Hill quoted a Senate Judiciary aide who essentially echoed Leahy's denial of the CNET story, writing that the version of the bill CNET wrote about is simply one discussion draft and won't likely move forward:
“Senator Leahy does not broad carve outs for warrantless searches of email content,” says a Senate Judiciary aide. “He remains committed to upholding privacy laws and updating the outdated Electronic Privacy Communications Act.”A person who has been privy to conversations about the impending bill intended to update privacy protections around digital communications for the modern age said that this was a “snapshot of a discussion point” and that it’s inaccurate to say it’s the version being pushed forward. This particular draft of the bill incorporates amendments suggested by Senator Chuck Grassley who has expressed concern that too much privacy protection for our email could negatively impact safety tasks.
Let's hope that's the case. There's good reason people freaked out when the CNET story dropped: the warrant requirement is the big prize with respect to ECPA reform. It's the golden egg -- what organizations like the ACLU, EFF, CDT and others have been pushing for for years now.
It's not a particularly radical ask. Indeed, we are simply demanding that the Bill of Rights be recognized in the digital age. For example, if cops or Feds need to get a warrant to read a letter on my desk, they should also get one to read the emails in my inbox. If they need to get a warrant to listen to my phone conversations, they should get one for snooping in on my Skype chats, too.
Seems straightforward, right?
To us lowly proles, maybe, but the law enforcement lobby doesn't think so. It seems to believe that Americans deserve absolutely zero privacy when it comes to the Internet -- the central mechanism whereby businesses and private residents communicate in the 21st century digital world.
Defenders of the surveillance state and limitless government power often say that if we "aren't doing anything wrong," we needn't worry about their powers to pry into our lives for no good reason. But they've got it backwards. They need to show some evidence of wrongdoing before snooping around in our quotidian everyday communications.
What are the cops so afraid of, anyway? Getting a warrant isn't hard if they have evidence to show we may be engaged in criminal activity. Cops and Feds got warrants for our communications before we emailed and chatted on Gchat, so we know for a fact that the sky won't fall if they have to get warrants for these newfangled communications, too. On the other hand, there are some things that a warrant requirement would prohibit, for example crazy fishing expeditions that lead to scandals of international significance. Oh well. I think most Americans are perfectly fine with that.
Let's hope Senator Leahy follows through on his tweet and pushes back against the surveillance lobby in the Senate. If hoping isn't enough for you, visit this excellent website Vanishing Rights and take action immediately.
Nothing less than control over your private information -- and therefore control over your own destiny -- is at stake.
UPDATE: Declan McCullagh has a possible explanation for the discrepancy between what he reported and what Leahy is saying this morning:
@kashhill Alternate explanation: Sen. Leahy responded to public criticism. Senate Judiciary aides were definitely not saying that yesterday.
— Declan McCullagh (@declanm) November 20, 2012