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Senator Patrick Leahy abandons warrantless surveillance of Americans’ email

Those of you who stubbornly cling to the quaint notion that your electronic communications may not be searched by government agencies without a search warrant (despite overwhelming evidence to the contrary) will applaud the abandonment, by U.S. Senator Patrick Leahy (D – Vermont), of his proposal to grant government agencies (even) more surveillance power than they currently possess under the law, including the warrantless surveillance of the email of Americans. Today, Senator Leahy tweeted that he will “not support such an exception” for warrantless access.

Senator Leahy’s reversal came a few hours after a CNET article that disclosed the existence of the measure was published this morning. (The disclosure may dissuade some of you who stubbornly cling to the notion that the Democratic Party cares any more about your Constitutional Rights than the Republican Party does. 😉 ) CNET News says:

A vote on the proposal in the Senate Judiciary committee, which Leahy chairs, is scheduled for next Thursday. The amendments were due to be glued onto a substitute (PDF) to H.R. 2471, which the House of Representatives already has approved.

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!”

It sometimes seems like the government is operating using “two sets of books” with regard to surveillance: 1) the “official” book involving the “rule of law” (including Constitutional Law) and “due process” and 2) the book of surveillance as practiced. Those who understand the technology that exists and has been deployed have often worked in corporations where the right of the company to read your email has been protected by a U.S. Supreme Court (9-0) decision. Even if government and others do not OBEY the law, it is still useful to have the laws on the books.

CNET continues:

A Democratic aide to the Judiciary committee did, however, tell CNET this afternoon that Leahy does not support broad exceptions for warrantless searches of e-mail content.

A note from Leahy’s Twitter account added: “Technology has created vacuum in privacy protection. Sen. Leahy believes that needs to be fixed, and #ECPA needs privacy updates.” That’s a reference to the 1986 Electronic Communications Privacy Act, which currently does not require that police always obtain a warrant for the contents of e-mail and other communications.

This revised position will come as a relief to privacy advocates and business lobbyists, who have been scrambling since last week to figure out how to respond to Leahy’s revamped legislation. Some portions would have imposed new restrictions on law enforcement, while others would lessen existing ones, making the overall bill unpalatable to many groups.

The Center for Democracy and Technology, which is coordinating an industry coalition pressing for surveillance reforms, said today that: “We wouldn’t support the rewrite described in CNET.” (Members of the coalition include Apple,, Americans for Tax Reform, AT&T, the Center for Democracy and Technology, eBay, Google, Facebook, IBM, Intel, Microsoft, TechFreedom, and Twitter.)

Seantor Leahy’s proposal WOULD have allowed over 22 federal agencies, including the Federal Communications Commission (FCC) and the Securities and Exchange Commission (SEC) to access the email of Americans, Facebook wall posts, Twitter direct messages, and Google Docs files without a search warrant. The proposal also would have given the Department of Homeland Security (one of my old customers during high-tech days) and the FBI “…more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

(If you hear a “spinning” sound right now, it is Thomas Jefferson and James Madison, in their graves. :-) )

The CNET article by Declan McCullagh with contributions by Casey Newton notes that U.S. Justice Department officials had expressed displeasure at Senator Leahy’s ORIGINAL bill, 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 CNET article concludes:

Leahy, a former prosecutor, has a mixed record on privacy. He criticized the FBI’s efforts to require Internet providers to build in backdoors for law enforcement access, and introduced a bill in the 1990s protecting Americans’ right to use whatever encryption products they wanted.

But he also authored the 1994 Communications Assistance for Law Enforcement Act, which is still looming over Web companies, and the reviled Protect IP Act. An article in The New Republic concluded Leahy’s work on the Patriot Act “appears to have made the bill less protective of civil liberties.” Leahy had introduced significant portions of the Patriot Act under the name Enhancement of Privacy and Public Safety in Cyberspace Act (PDF) a year earlier.

Here’s more reaction to Leahy’s proposed changes:

  • Executives at DataFoundry, a provider of data center services in Austin, Tex., said the proposed changes were an unacceptable breach of Fourth Amendment protections against unreasonable search and seizure.
  • Ronald Yokubaitis, co-CEO of Data Foundry, said giving the government near-unchecked authority to search consumer information stored in the cloud would destroy confidence in cloud-based services and encourage more businesses to move overseas, where protections are greater. “If this language comes in, we are opposed to the bill,” Yokubaitis said. “It will kill cloud computing.”
  • Several members of the coalition contacted by CNET today reiterated support for the September version of Leahy’s amendment, which included a warrant provision. An Intel spokeswoman forwarded a letter in support of the earlier version of the legislation, adding: “Our position of support for the warrant requirement is unchanged.”
  • Kim Hart, a spokeswoman for Neustar, also endorsed the September version of the measure. “As a member of the Digital Due Process coalition, we supported Senator Leahy’s original legislation,” she said in an e-mail. “We have not yet had the opportunity fully to consider revisions to the legislation, though our experience has been that Senator Leahy addresses these difficult issues in a thoughtful and balanced way.”

-Bill at

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