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 ECPA (the Electronic Communications Privacy Act) is an incredibly outdated bill concerning (as it says) the privacy of electronic messages.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.


Reader Comments (rss)

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  1.  
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    weneedhelp (profile), Nov 20th, 2012 @ 10:11am

    the Electronic Communications Privacy Act
    Patriot Act
    When an act claims to be about privacy, it most certainly means less of it for the people.

    I love the way they name these things.

     

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  2.  
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    That One Guy (profile), Nov 20th, 2012 @ 10:27am

    Re:

    A good rule of thumb for 'decoding' the names of political bills like this is to take the dictionary meaning of the words, find the words that means the exact opposite, and swap them. More often that not it'll at least be closer to what the bill is actually about than what the original name was suggesting.

     

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  3.  
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    Anonymous Coward, Nov 20th, 2012 @ 10:28am

    "Cave"? Come on. This is the same guy who sponsored PIPA. If anything he wanted this from the beginning, and now he has an excuse for it.

     

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  4.  
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    Anonymous Coward, Nov 20th, 2012 @ 10:31am

    "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."

    I can't even think of 22 government agencies, let alone 22 that should have a need for any of this information with or without a warrant.

    The people in government pushing strongly against needing warrants for these kinds of searches are going to cost tax payers big time in the event that the Supreme Court eventually rules that you DO need a warrant for all these seizures and searches.

    Is it really worth risking that tens or hundreds of thousands, or even millions of court cases could all be overturned by the Supreme Court for violating the constitution on illegal searches and seizures without a warrant? All those millions of man hours, and hundreds of billions of dollars that will be wasted over the years.

    Sure you may say, not if we arrest and convict enough people based on this illegally gathered evidence! But look at past supreme court rulings that did similar far reaching and very costly things.

    -Over turning all death penalty convictions in the nation, ruling that it was being unconstitutionally carried out.

    -Over turning over 100 years of precedent in campaign finance law in Citizen's United.

    -Over turning a large number of criminal convictions where the defendant did not get their constitutionally guaranteed lawyer to defend them, forcing each state to retry thousands the cases again, or just let the people go free.

    So yes, it IS a very big risk that COULD very well happen in the future if the government keeps this up and forces the court's hands.

     

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  5.  
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    fogbugzd (profile), Nov 20th, 2012 @ 10:33am

    I predict a surge in interest in encrypted email.

     

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  6.  
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    out_of_the_blue, Nov 20th, 2012 @ 10:34am

    Amazin' how bills flip, huh? To always end up police state.

    "A Senate proposal touted as protecting Americans' e-mail
    privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law.

    CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns."

    Not just minor changes, but complete reverse of prior.

    "let folks in Congress know that this possible amendment, allowing warrantless spying, is not acceptable." -- Mike, this just "legalizes" what's manifestly going on as daily routine. If they spy on General Petraeus, then they'll spy on you if the whim strikes them. And as I've pointed out before, a gov't that went to war in Iraq with completely phony excuses and there murdered upwards of a million people is NOT going to be concerned with your "civil rights". The "folks in Congress" all go along with the most fascist and high-tech police state in history, they've no interest in stopping it.

     

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  7.  
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    Anonymous Coward, Nov 20th, 2012 @ 10:38am

    writing letters and waving signs do not send the message that anything is unacceptable.

    Nothing changes until lawmakers feel personal fear.

     

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  8.  
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    Lord Binky, Nov 20th, 2012 @ 10:39am

    Re:

    That's how the system is ment to be played. There is no rules or repercussions to the titles being unrelated or opposite of the wording of the bills. There isn't even a requirement that any additions that anyone adds stay related to the bill or it's intent.

    The only difference I can think of as to why it doesn't happen so much in other professions because they have at least some form of shame or reputation.

     

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  9.  
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    Applesauce, Nov 20th, 2012 @ 10:46am

    A good start.

    This is a good start, but the law enforcement community is already hampered by a host of similar restrictions. After all, why do we even need the expense (time and money) of jury trials? I mean, we've got bigger problems if we can't trust the honor of our police forces. In this economy we really ought to be streamlining the criminal process by eliminating anything that slows down the gears of law and order. Sure, a few innocent people might be caught up in the wheels, but isn't that a small price to pay for a civil society?

    This bill sets a valuable precedent for the near future (nearer than most people think):

    Clearly, privacy is dead. Time to 'get over it'. The next frontier is to ensure that bad people aren't planning to do harm. Recent experiments have demonstrated an ability to see (to a limited extent so far, and only in a laboratory setting) what people are actually thinking. Presently, this requires MRI and CAT-Scan-like equipment, but that will soon change as equipment becomes cheaper and more portable. Obviously, once we can read all minds inexpensively, we'll be able to stop crime and violence before it happens.

    It will be a paradise on earth. Something to look forward to.

     

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  10.  
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    Anonymous Coward, Nov 20th, 2012 @ 10:58am

    Why isn't anyone making a Chrome extension that encrypts Gmail e-mails before sending them?

     

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  11.  
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    Anonymous Coward, Nov 20th, 2012 @ 11:02am

    it never ceases to amaze me how something that starts pretty reasonable soon goes down the pan. dont know about anyone else but i would really like to know who influences these drastic changes the most. is it someone high up in one of/more than one of the law enforcement agencies or is it someone else in Congress? perhaps there are threats of being dismissed. if so, it's a pity they aren't put into play. thew only thing worse than a politician is a gutless one, that caves to the slightest pressure

     

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  12.  
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    gorehound (profile), Nov 20th, 2012 @ 11:20am

    Leahy The Asshole Democrat of SOPA CRUD is back as I knew he would be.
    You can not dare trust this schmuck.I am so amazed lately at the amount of idiots in both Government and Law Enforcement and the Military who seem to want to do whatever they can to lose our Freedom.Over and over they Pass Bad Laws which just keep giving them more and more POWER.
    One of these days they will be paying for this one BIG TIME.
    I hate these people and I have no sympathy for them either.

    LEAHY is a Frakkin Asshole and we have not forgotten nor forgiven you Leahy...........As soon as I had learned of your so nice Bill I knew it would in the End be as bad or even worse than SOPA.
    I hope you and all others who are working towards the destruction of Freedom pay for your Actions dearly.

     

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  13.  
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    Violated (profile), Nov 20th, 2012 @ 11:31am

    Re:

    I would have to agree with you. Anyone who wants to reign in Government power and to make it accountable sure would then NOT add a clause for 22 agencies to spy on everyone freely.

    Giving him the benefit of the doubt would be nice when it has not been proposed officially yet. This still looks highly dodgy and seems like the classic switcheroo in that he offers something the public welcomes but at the last moment switches it for something quite nasty.

    Let the true colours fly, so we will never wonder why, where you shall live and die.

     

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  14.  
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    Anonymous Coward, Nov 20th, 2012 @ 11:41am

    I thought they were already doing those things. Do they even need this?

     

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  15.  
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    The eejit (profile), Nov 20th, 2012 @ 12:40pm

    Re:

    Yes, because if they don't have it, then the RIAA won't be able to steal your bank details so that you can pay them 1560 times for wtaching The Star Wars Trek.

     

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  16.  
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    Anonymous Coward, Nov 20th, 2012 @ 1:23pm

    Re:

    http://en.wikipedia.org/wiki/List_of_United_States_federal_agencies

    I'm sure that's no where near to a complete list. Not even in a drug-induced dream state.

     

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  17.  
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    Mr. Applegate, Nov 20th, 2012 @ 1:53pm

    Perhaps because

    The entire reason GMAIL, YAHOO, HOTMAIL... exist is so that they can parse your email and target you with advertising. If your email is encrypted that becomes pretty much useless.

     

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  18.  
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    FMHilton, Nov 20th, 2012 @ 2:55pm

    Send an email

    Hey, why don't we do the obvious thing?

    Send every single member of Congress nasty emails and spam them to death-then make them pay for it by having the FBI investigate where all the emails came from, without a warrant for every single case. Bet they wouldn't like the idea of the Feds going through their emails or computers quite as much.

    If I saw 10,000 emails all from 'anonymous' and protesting this, I'd be the first to stop the idea.

    Leahy is a dinosaur and should have been put out of his misery in the last election.

    Now we're paying the price for it.

     

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  19.  
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    Anonymous Coward, Nov 20th, 2012 @ 6:48pm

    Re: Re:

    At some point americans will need to speak up about the naming of these bills, with the last minute amendmants, the closest title to describe this bill now, would be, lets say "email surveilance" act.........this is a disgusting "tactic", used to fool those who only read titles

     

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  20.  
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    Anonymous Coward, Nov 20th, 2012 @ 6:50pm

    If you guys cant force your representatives to pass the original intent of this bill, consider it a win for them

     

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  21.  
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    Anonymous Coward, Nov 20th, 2012 @ 6:59pm

    Re: Perhaps because

    Useless to google, yahoo and hotmail, and rightly so, if they cant guarantee without question peoples non consent to their privacy......if they want to use from a purelly business standpoint, then make a system that is completly automatic with no human access, and fight any laws or requests for any as of yet, unwritten, unlawfull laws

    Its time people start getting more involved in the laws, regulations and reforming of laws

     

    reply to this | link to this | view in thread ]


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