ISPLA ALERT: Email Privacy Proposal Fight
- In a bill having wide privacy implications, Senator Patrick Leahy (D-VT), the Chairman of Senate Committee on the Judiciary is marking up a new bill next week, having dropped his initial one pertaining to amendments to HR 2471, to amend section 2710 of title 18, United States Code, according to an article of Nov 20 by Declan McCullagh of CNET.
However, later in the same day Senator Leahy apparently abandoned his controversial proposal that would grant government agencies more surveillance power -- including warrantless access to Americans' e-mail accounts -- than they possess under current law.
On Twitter he wrote that he would "not support such an exception" for warrantless access. The remarks came a few hours after a CNET article was published this morning that disclosed the existence of the measure. A vote on the proposal in the Senate Judiciary committee, which Senator Leahy chairs, is scheduled for next Thursday, according to CNET. The amendments were due to be glued onto a substitute (PDF) to H.R. 2471, which the House of Representatives already has approved.
According to CNET, "Leahy's about-face comes in response to a deluge of criticism today, 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!'"
The bill had a number of changes including but not limited to the following:
✭ Granting warrantless access to Americans' electronic correspondence to over 22 federal agencies with only a subpoena being required, not a search warrant signed by a judge based on probable cause.
✭ Permitting state and local law enforcement to warrantlessly access Americans' correspondence stored on systems not offered "to the public," including university networks.
✭ Authorizing any law enforcement agency to access accounts without a warrant -- or subsequent court review -- if they claimed an "emergency" situation existed.
✭ Saying 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.
✭ Delaying notification of customers whose accounts have been accessed from 3 days to "10 business days." This notification could have been be postponed by up to 360 days.
The list of agencies that would receive civil subpoena authority for the contents of electronic communications also included 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, according to CNET.
There is quite a bit of coverage on this latest proposal. In light of the David Petraeus scandal it is suggested that the reader go to:
ISPLA has commented on another of Senator Leahy's bills in the past, proposed amendments to the 1986 Electronic Communications Privacy Act, and will continue monitoring this issue closely.
ISPLA Director of Government Affairs
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