Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee who himself wrote significant portions of the PATRIOT Act, has “dramatically reshaped” his legislation in response to “law enforcement concerns,” reports Declan McCullagh at CNET. (If the “law enforcement concerns” were that they were allowed to spy, unrestrained, on citizens not suspected of any crimes, then, good job, Senator Leahy — asshole.)
A vote on Leahy’s bill — which now authorizes warrantless access to the email messages of Americans — is scheduled for next week.
|Sen. Patrick Leahy kowtowed to law enforcement demands, turning a privacy bill into one which would let the government spy on citizens’ emails without a warrant
Leahy’s bill, as rewritten, would allow more than 22 government agencies to access Americans’ private emails, Google Docs files, Facebook wall posts, and Twitter direct messages without even bothering to get a search warrant — which, since the PATRIOT Act was passed, has been damn easy, anyway.
Government agencies all the day down to the Securities and Exchange Commission and the Federal Communications Commission would be allowed to snoop through your emails, trawling for information. The bill would also give the FBI and Homeland Security more authority to gain full access to Internet accounts — without notifying either the account’s owner, or a judge.
Highlights of the Revised Bill
• Grants warrantless access to Americans’ electronic correspondence to more than 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.
The rewritten bill, kowtowing to law enforcement demands, is a far cry from Leahy’s earlier version, which required the cops to get a search warrant — backed by probable cause — before the could read the contents of private emails or other communications.
Leahy had planned on a vote on an earlier version of his bill — you know, the one that actually protected privacy — in late September. But after surveillance-hungry law enforcement groups, including the National District Attorneys’ Association and the National Sheriffs’ Association, objected to the legislation and asked him to “reconsider acting” on it, Leahy delayed the vote and reworked the bill, pretty much giving law enforcement everything they wanted, Constitutional or not.
Justice Department officials had expressed their “displeasure” about Leahy’s original bill, which would have protected privacy, according to one person who took part in Capitol Hill meetings on the topic. Associate Deputy Attorney General James Baker has warned that requiring a warrant to obtain stored email (which has always been the requirement until now, mind you) could have an “adverse impact” on criminal investigations.
But a legislative counsel for the American Civil Liberties Union (ACLU) said allowing warrantless access to Americans’ private data “undercuts” the original purpose of Leahy’s proposal. “We believe a warrant is the appropriate standard for any contents,” said Christopher Calabrese.
“There is no good legal reason why federal regulatory agencies such as the NLRB, OSHA, SEC or FTA need to access customer information service providers with a mere subpoena,” said Markham Erickson, a lawyer in Washington, D.C. “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 list of agencies that would be able to spy on private communications without a warrant — merely, rather, a subpoena — would also include the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, the National Labor Relations Board, and even the freakin’ Mine Enforcement Safety and Health Review Commission.
The dramatic shift in Leahy’s bill means it will be almost certainly be opposed by tech companies. The rewritten bill represents 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.
Internet users currently enjoy more privacy rights if they store their data on their hard drives or on removable media. Internet companies fear this could slow the shift to cloud-based computing services unless the law also protects the privacy of the cloud.