ECPA Reform Petition Passes 100K Signature Threshold With A Last-Minute Surge

from the and-now-we-wait... dept

The We the People petition to reform the ECPA in order to give email the same Fourth Amendment protection that snail mail enjoys narrowly passed the 100K signature threshold needed to (theoretically) prompt a response from the administration.

The last-minute push to hit the mark was impressive. Reminded by the post here yesterday that I hadn’t actually signed the petition yet, I went and remedied that around 5 pm (CST) yesterday evening. At that point, it looked as though the petition would be an also-ran, having only gathered about 78,000 signatures with just a few hours remaining.

Needless to say, I was a bit surprised to read this morning that it had hit 100,000 signatures. The Hill rather hopefully states that the White House “must” now respond to the petition, but as we’ve seen in other cases, the response is either long-delayed (the Snowden petition is going on its fifth month of being ignored) or treated to an administrative pat on the head and a brief rehash of the Official Talking Points.

One would hope this one does prompt a serious response. The only reason this law hasn’t been updated is because treating email 180 days old or older as “abandoned” cuts down on the requirements law enforcement and investigative agencies need to meet to access it. These entities obviously benefit heavily from the clearly outdated law and have no interest in seeing this convenient loophole in Fourth Amendment protection closed. The administration has long defended our nation’s intelligence and investigative agencies, so it may have little interest in making their jobs “harder.” On the other hand, this support has seen a marked decline over the past few weeks, and there are indications that some in the White House really do want to fix this, so there may be some hope yet.

On the plus side, The Hill reports that the DOJ has already weighed in on this topic.

At a House hearing in March, Elana Tyrangiel, the acting assistant attorney general for the Justice Department’s Office of Legal Policy, agreed that updating ECPA has “considerable merit.”

“We agree, for example, that there is no principled basis to treat email less than 180 days old differently than email more than 180 days old,” she said “Similarly, it makes sense that the statute not accord lesser protection to opened emails than it gives to emails that are unopened.”

This step in the right direction was unfortunately tempered by a massive step backward.

But she urged lawmakers to exempt civil regulatory investigations from the warrant requirement. She explained that regulators investigate conduct that is unlawful, but not necessarily criminal. She argued that because regulators often do not have access to the warrant power, the requirement would impede critical government investigations.

This “exemption” basically defeats the entire purpose of ECPA reform, and in some ways, makes things worse. It takes a little loophole in the law, which came about because of changes in technology, then widens it and puts a giant stamp of approval on it. It goes from a little loophole that violates the 4th Amendment to a big official law that violates the 4th Amendment.

On top of that, frankly, I’m of the opinion that government investigations could use a few more impediments. And it’s not as if regulators can’t compel production of email through subpoenas. Just because they’re not pursuing criminal charges doesn’t mean they’re completely out of options. When you’re looking to close a loophole, it’s hardly beneficial to create a giant open door in its place. Civil regulatory agencies should treat the email it seeks like it does any other document. If it can’t just seize these because an arbitrary amount of time has passed, then it shouldn’t be able to do so with email. The rules need to be standardized, not undermined by exceptions and justifications.

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Comments on “ECPA Reform Petition Passes 100K Signature Threshold With A Last-Minute Surge”

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22 Comments
Anonymous Coward says:

Why do you expect any other response?

These petitions are stupid, the people signing them are stupid, and the people flogging them are stupid.

You should have learned by now, after the umpteenth repetition, that if the petition’s contents actually involve anything substantial — like meaningful reform — that it will be ignored, explained away, lied about, or met with silence.

The correct response to any person or organization promoting these petitions is sneering contempt. They either know how the game is played (in which case they’re engaged in self-promoting theater) or they don’t (in which case they’re idiots). Either way, there’s no reason for people to use valuable time and energy participating in them.

Change doesn’t come from petitions. Change comes from demands. Real live actual politicians know this, and they are laughing at you and your pathetic petitions — as they should. If you want to get them to do something, then you’re going to have to get your hands dirty. You’re going to have to make sacrifices. You’re going to have to piss people off. You’re going to have to spend money. And you’re going to have to dismiss the worthless organizations that pointlessly expend their resources on a known-failed strategy.

Mike Masnick (profile) says:

Re: Why do you expect any other response?

This comment is wrong and ignorant on almost every level.

These petitions are stupid, the people signing them are stupid, and the people flogging them are stupid.

We explained yesterday why that’s not true.

You should have learned by now, after the umpteenth repetition, that if the petition’s contents actually involve anything substantial — like meaningful reform — that it will be ignored, explained away, lied about, or met with silence.

That’s blatantly false, and we’ve seen otherwise on multiple occasions. As we said, this petition was part of a much larger process. It’s not the petition alone, but the petition itself is a key part of it. Not signing the petition only helps the status quo.

The correct response to any person or organization promoting these petitions is sneering contempt. They either know how the game is played (in which case they’re engaged in self-promoting theater) or they don’t (in which case they’re idiots). Either way, there’s no reason for people to use valuable time and energy participating in them.

Many people who understand a hell of a lot better than you were instrumental in getting this petition to this point, and, as noted, it was part of a much larger process that is still ongoing to fix these laws.

Change doesn’t come from petitions. Change comes from demands. Change doesn’t come from petitions. Change comes from demands. Real live actual politicians know this, and they are laughing at you and your pathetic petitions — as they should. If you want to get them to do something, then you’re going to have to get your hands dirty. You’re going to have to make sacrifices. You’re going to have to piss people off. You’re going to have to spend money. And you’re going to have to dismiss the worthless organizations that pointlessly expend their resources on a known-failed strategy.

And only an ignorant fool would think that this petition was the only thing that was being done here. There are demands. Lots of what you describe above is being done. And this petition is a part of that process. Only you’re too cynical to recognize it because you think you know better. You don’t.

silverscarcat (profile) says:

Re: Why do you expect any other response?

Clap clap clap

And you show us all why the Civil Rights Movement failed in the 60s. After all, all those petitions, marches, demonstrations…

They did nothing, right?

I mean, what you said was EXACTLY what people who derided Occupy Wall Street were saying “what good is a protest, it does nothing to change the status quo”.

So, go ahead, sneer at the fact people sign petitions. Sneer at the fact that people want to make their voices heard in one of the few ways they can.

Go ahead, dismiss this as completely irrelevant.

But really, don’t cry to us that your rights are being taken away if you can’t even take time out of your day to sign a petition.

After all, real politicians use petitions as a basis of which to craft law.

Anonymous Coward says:

Re: Re: Why do you expect any other response?

If you don’t understand the difference between a petition and protest, then you have much to learn.

I know about the protests of decades ago because I was THERE. I put my ass on the line (quite literally) for what I felt were good causes. I was out there when the tear gas was deployed, and the billy clubs. (Thankfully: not the bullets.) So I have more than a casual understanding of what it takes to effect change.

I also know about the protests of today, and while I don’t always agree with them, at least I can respect those participating for having some skin in the game. OWS accomplished what it did (certainly far short of its goals, but at least it was nonzero) because people were willing to freeze their asses off, to risk arrest, and to stubbornly persist in the face of opposition. There’s a HUGE gap between that and those who just sign a petition, say “I’ve done my part”, and get on with their day.

I stand by my comment above. Yes, it’s cynical. It’s also dead-on accurate, as anyone who has studied the machinations of power in DC (and elsewhere) knows. 100K signatures on a petitions means nothing compared to a handful of lobbyists with campaign contributions or to an old golf buddy who who happens to be the CFO of a company that needs a favor. That’s how the game is played: power, money, networking. Even the most successful petition is little more than an annoying buzzing fly circling the perimeter, to be swatted away if becomes a nuisance.

“Petition for redress of grievances” is a great idea — a noble one, a fine one. It’s also operationally obsolete, as anyone who’s actually been paying attention knows. If, by some slim chance, what petitioners want happens, it’s NOT because of the petition: it’s because someone wanted it to happen anyway, because it served their purposes or they needed a PR opportunity or because it scored in their political favor.

If you want to see what it took (and what it takes) to effect change, read about John Lewis and what he did all those years ago. He’s a hero, a role model, and a great man. And a big part of why he is, is that he had the willingness to make sacrifices when necessary. If YOU want to effect change, and you’re serious about it, then you’re going to have to consider whether you’re willing to do the same.

CK20XX (profile) says:

Re: Re: Re: I think I understand where you're coming from.

It’s easy to accuse the internet of being just a big echo chamber where people only pretend to help others without ever having to leave their comfy chairs. We saw this was true when that earthquake hit Haiti in 2010. Most of the $9 billion pledged to help rebuild the country never made it there, and the relief efforts that actually took place were so chaotic that the country’s president eventually said, “Please stop helping us!”

Your fatal flaw though is assuming that petitions are all people are doing. People actually are getting out there to fight; the petitions were just part of a multi-pronged attack, and they were a significant part of stopping SOPA to boot. It’s easy to give up on the government like you have, but you’d also be surprised at how many representatives actually want to fight for us. They can’t do it though if people like you don’t stand up and empower them with your shouts and signatures.

Perhaps the real question is: are you ready to stand up again and help the next generation of humanity in this battle, or has all the fight been beaten out of you by a view of the government that may not be as true as you think it is?

silverscarcat (profile) says:

Re: Re: Re: Why do you expect any other response?

Some of us, myself included, can’t make it to those rallies due to distance and money restraints.

However, I can make calls to my politicians, I can use the internet to get the word out about what’s going on. If signing a petition helps bring something to light to people, then I’ll sign it.

If I feel strongly about it, I call my reps in Washington. I call them, email them, write them constantly.

Sure, maybe it does nothing, but you know what?

One of my senators actually called me back about one of my concerns and helped clarify stuff with me.

So, yes, they do listen at times.

Mike Masnick (profile) says:

Re: Re: Re: Why do you expect any other response?

I stand by my comment above. Yes, it’s cynical. It’s also dead-on accurate, as anyone who has studied the machinations of power in DC (and elsewhere) knows. 100K signatures on a petitions means nothing compared to a handful of lobbyists with campaign contributions or to an old golf buddy who who happens to be the CFO of a company that needs a favor. That’s how the game is played: power, money, networking. Even the most successful petition is little more than an annoying buzzing fly circling the perimeter, to be swatted away if becomes a nuisance.

This is so clueless it’s unbelievable. It’s just wrong. Flat out wrong. It’s someone who thinks he’s studied DC, but has never actually been involved in anything real. You’re wrong. The petition, along with a wider campaign, helped flip the White House on SOPA — which was exactly a situation you describe. The lobbyists and “buddies” of folks in the White House wanted SOPA, but a big campaign changed it.

If you knew anything about lobbying, you’d know that while it does work when no one’s paying attention, the one way to ALWAYS beat lobbying is if you have enough voters behind you. The reason lobbyists often win is because there’s no evidence of a public uprising against what they’re doing.

And you? You’re encouraging that. You’re helping the lobbyists.

Last year, This American Life had a report that gave one of the most accurate representations of lobbyists I’ve seen yet, and in it, they make a good point: lobbyists win because the public is apathetic. Nearly every example of the lobbyists losing came when enough people spoke out.

And you’re telling people they’re stupid to speak out? Why are you helping the lobbyists?

Anonymous Coward says:

Re: Why do you expect any other response?

If you are correct and these petitions are a farce then the best way to emphasize this fact is to sign them, thus showing that popular issues brought to the attention of the executive — using the very mechanism it provides to garner such feedback — are being systematically ignored.

Beech says:

“there is no principled basis to treat email less than 180 days old differently than email more than 180 days old”

AKA, they want the power to warrantlessly snoop on email less than 180 days old too.

“to exempt civil regulatory investigations from the warrant requirement”

oh, and there she is saying it. “here’s the limitations, and here’s who can ignore said limitations.” and judging by how much our government agencies love sharing with one another, whatever information is gleaned by the EPA or whoever will surely end up on the servers of the FBI, CIA, and NSA as well.

Ed Allen (profile) says:

This “We just want this one exception” is how we have gotten copyrights so arcane that even Hollywood lawyers don’t always get it right.

But, of course, we cannot clear away the cruft and start copyrights back where the Constitution says they should be, too many oxen would be gored, so instead we live with something EVERYBODY says needs improvement but nobody will allow any warts to be removed in the interest of simplification.

Miko says:

It’s stupid to accuse the people who point out that these types of petitions are worthless of being apathetic. After all, pointing that fact out takes way longer than actually signing the petition would, so encouraging others not to sign should be regarded as an activist action. Even if you disagree with their forms of activism, that doesn’t make them apathetic.

Here’s the thing: the government is not on your side. When you write a petition to someone who has an active interest in opposing your interest, nothing happens. Why not? Well, because they aren’t on your side. If you want your e-mail to be secure, stop wasting time signing petitions and use that time for something productive, such as learning about encryption. Politely asking your enemy to stop abusing your rights is worthless; putting up technical barriers that prevent them from doing so is worthwhile.

Mike Masnick (profile) says:

Re: Re:

Here’s the thing: the government is not on your side. When you write a petition to someone who has an active interest in opposing your interest, nothing happens. Why not? Well, because they aren’t on your side. If you want your e-mail to be secure, stop wasting time signing petitions and use that time for something productive, such as learning about encryption. Politely asking your enemy to stop abusing your rights is worthless; putting up technical barriers that prevent them from doing so is worthwhile.

This is frustrating because you’re wrong and you’re making comments that suggest you don’t know what you’re talking about.

Yes. Encryption is important, but so is the political process. And, “the government” is made up of a lot of different people. Many of them VERY MUCH are on this side and are trying to push through this change, and a petition HELPS them, where as you’d rather spit in their face for trying to help.

Manfred Manfriend says:

Yawn, we've seen this movie before...

The We the People petition to reform the ECPA in order to give email the same Fourth Amendment protection that snail mail enjoys narrowly passed the 100K signature threshold needed to (theoretically) prompt a response from the administration.

….And in other news the Administration has changed the response threshold on its We the People petitioning website from 100,000 signatures needed to guarantee a response to 250,000 signatures required to gain a response from the White House. The spokesperson from the administration said the move was necessary again to prevent gaming of the website. “But not to worry,” the speaker for the man in the Oval Office quickly added. “President Obama will definitely be answering the question of ‘how many woodchucks could shuck wood if a woodchuck could shuck wood’ in a live address tonight at seven o’clock Eastern standard time…”

Anonymous Coward says:

>This is so clueless it’s unbelievable. It’s just wrong. Flat out wrong. It’s someone who thinks he’s studied DC, but has never actually been involved in anything real. You’re wrong. The petition, along with a wider campaign, helped flip the White House on SOPA — which was exactly a situation you describe. The lobbyists and “buddies” of folks in the White House wanted SOPA, but a big campaign changed it.

And there were A LOT more people that were concerned with this new policy going into affect rather than JUST BARELY 100k signatures online, and what equates to a suggestion box that they ignore.

>If you knew anything about lobbying, you’d know that while it does work when no one’s paying attention, the one way to ALWAYS beat lobbying is if you have enough voters behind you. The reason lobbyists often win is because there’s no evidence of a public uprising against what they’re doing.

That may be a part, but that’s a very small part. Lobbyists win because they pay for their views to be heard – and recognized by campaign contributions and other kickbacks.

>And you? You’re encouraging that. You’re helping the lobbyists.

That’s a terrible point you try to make. Not doing shit, isn’t the same as helping a lobbyist – it’s apathy.

>Last year, This American Life had a report that gave one of the most accurate representations of lobbyists I’ve seen yet, and in it, they make a good point: lobbyists win because the public is apathetic. Nearly every example of the lobbyists losing came when enough people spoke out.

The public is apathetic because the people that are chosen to represent them systematically do not. Sure, there are very few examples such as Wyden and Udall and a hand full of others that try to work in the public’s best interests, but that is a very long stretch. So if the goverment isn’t working for the people, then why should the people fucking care?

– I still agree that there needs to be reform of the ECPA, as well as many of our bills that focus on technology and it’s uses. That being said, there are many more ways of showing your support for something then signing an online petition.

The Wanderer (profile) says:

Re: Re:

That’s a terrible point you try to make. Not doing shit, isn’t the same as helping a lobbyist – it’s apathy.

For one thing, apathy is bad enough.

For another thing, you aren’t “not doing shit”; you’re arguing in favor of “not doing shit”. In other words, you’re not just not taking action yourself; you’re taking the action of trying to convince other people to not take action.

– I still agree that there needs to be reform of the ECPA, as well as many of our bills that focus on technology and it’s uses. That being said, there are many more ways of showing your support for something then signing an online petition.

Quite true – and people are also working on those other approaches; if you want to help further, there’s no reason not to take those other actions as well.

But as has already been pointed out multiple times, taking those other approaches is no reason not to also take the “support the petition” approach. However little effect it may have alone, it’s more than no effect, if only because it helps show how many people care about the issue.

Rekrul says:

“We agree, for example, that there is no principled basis to treat email less than 180 days old differently than email more than 180 days old,” she said “Similarly, it makes sense that the statute not accord lesser protection to opened emails than it gives to emails that are unopened.”

She’s not arguing that they should need a warrant to look at mail older than 180 days, she’s saying that mail less than 180 days old should be treated the same as older mail is now and they shouldn’t need to have a warrant to read it.

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