Patrick Leahy Ready To Cave To Law Enforcement: Has ECPA Reform Amendment To Include Loopholes For Warrantless Spying

from the lame dept

See update at the bottom...

Back in September, we wrote about how Senator Patrick Leahy had introduced a really good bill for ECPA reform. ECPA (the Electronic Communications Privacy Act) is an incredibly outdated bill concerning (as it says) the privacy of electronic messages. It was written in a time (the mid-1980s) before everyone had email, let alone everyone used web-based, cloud-stored email. And thus, it has weird provisions, such as considering that messages stored on a server for more than 180 days are "abandonded" and thus subject to very little privacy protections. And that's just one of many, many problems with ECPA, which treats all kinds of messages differently.

Leahy's reform was pretty straightforward: it basically said that if the government wants to see your electronic info, it needs a warrant. This seems completely reasonable and something that probably should be considered the law already if the 4th Amendment were respected. Of course, almost immediately after he introduced his reform package, we noted that the law enforcement community had freaked out over the bill, saying that if law enforcement had to actually, you know, justify its activities to a judge, it might have "adverse impact" on investigations (you know, like reading the love letters of generals).

We noted that those concerns led Leahy to delay the markup on the bill. However, it had been widely reported that the bill was back on track for late next week. And... today comes the bombshell. According to Declan McCullagh, Leahy is planning a manager's amendment to the bill that will effectively give large parts of the federal government an exception to the warrant requirement and let them snoop on your email with just a subpoena (i.e., no judicial oversight).

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.

In other words, this went from being a much needed bill to a dangerous bill very quickly. That's extremely unfortunate. ECPA reform is needed, but not this kind of reform. From what we've heard, while there is this new manager's amendment, it is not certain that Leahy will introduce this version, and may still go with his old version (or a modified version that still requires warrants). It seems important to let folks in Congress know that this possible amendment, allowing warrantless spying, is not acceptable.

Update: There's some debate over how serious this proposal was. A new report claims that this amendment wasn't likely to be seriously considered, even though it does exist. Declan McCullagh is standing by his story, and saying that the claim that this amendment won't be seriously considered is in response to the public outcry about it.