Patrick Leahy, the Vermont chairman of the Senate Judiciary Committee, and legislative aides denied a report Tuesday that the Democrat had reversed himself on legislation that would require authorities to obtain a probable-cause warrant to get access to all e-mail and other content stored in the cloud.
Leahy’s comments on Twitter and on his website came hours after CNET News.com reported that Leahy was pushing a new draft of the proposal that, instead of tightening the 1986 Electronic Communications Privacy Act, would actually expand the government’s authority to obtain e-mail without warrants.
He did not deny that the anti-privacy version of the bill was circulating on the Hill, but said it did not have his support, and that he would not be backing it at a planned November 29 public committee hearing.
“The rumors about warrant exceptions being added to ECPA are incorrect. Many have come forward with ideas for discussion before markup resumes on my bill to strengthen privacy protections under ECPA,” Leahy said on his site. “As normally happens in the legislative process, these ideas are being circulated for discussion. One of them, having to do with a warrant exception, is one that I have not supported and do not support.”
The draft uncovered by CNET would have given 22 federal agencies access to Americans’ e-mails with an administrative subpoena, which does not require judicial approval based on probable cause.
The ACLU, which has been involved in discussions over the legislation, backed Leahy’s version of events, and said he never supported the anti-privacy draft.
“This was a discussion point,” said Chris Calabrese, the legislative counsel for the American Civil Liberties Union. “He’s not interested in doing that.”
The amendment was virtually identical to a proposal by Sen. Chuck Grassley (R-Iowa), who floated the amendment during a September hearing before the Judiciary Committee, Calabrese said.
The current law covering access to e-mail gives the government the right to snoop without a court order on e-mail that’s older than 180 days, but requires a court order for missives that are newer than this, a fact that privacy activists and Leahy have been trying to change for years.
A legislative aide to Leahy, who declined to be quoted, said via a telephone call that there still might be “some tweaks” to Leahy’s proposal before the committee vote. Others familiar with the discussions suggested the tweaks might include granting the authorities warrantless access to university and corporate e-mail, but noted that no proposal has been finalized.
A Leahy aide said the senator was not immediately available for comment.
Jim Dempsey, the vice president for the lobbying group, Center for Democracy & Technology, said Leahy was floating a draft that supports CNET’s story. But it was only to weigh interest, Dempsey said, because so many Washington insiders, including the Justice Department and an army of lawmakers, oppose Leahy’s initial version.
“Leahy was trying to figure out some way to meet those concerns. He tried to put some words on paper to try to address those concerns,” Dempsey said. “But various people explained that his proposal was not going to be a step forward and would not be the privacy improvement the senator had hoped for.”
Leahy initially proposed the sweeping digital privacy protections in September after first failing to push them through last year. But he quietly had been circulating a revised draft following the elections, Dempsey said.
Leahy’s initial package, if approved as proposed, would nullify the provision of ECPA that allows the government to acquire a suspect’s e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed, as long as the content has been stored on a third-party server for 180 days or more. Currently, to acquire such data, the government only needs to show, often via an administrative subpoena, that it has “reasonable grounds to believe” the information would be useful in an investigation.
When enacted two decades ago, ECPA provided much more privacy than it does today. The act was adopted at a time when e-mail wasn’t stored on servers for a long time, but instead was held there briefly on its way to a recipient’s inbox. E-mail more than 6 months old was assumed abandoned.
As technology advanced, more and more people began storing e-mail on cloud servers indefinitely. And Congress has so far been unwilling to change course, despite the Fourth Amendment implications as data storage in the cloud has grown.
No matter what package comes out of the Judiciary Committee, if anything at all, the full Senate would have to approve it, as well as the House and President Barack Obama.
Key E-Mail-Privacy Senator Denies a Turn to the Dark Side
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Key E-Mail-Privacy Senator Denies a Turn to the Dark Side
