Senator Jeff Sessions Looks To Blast A Giant Hole In The 4th Amendment For 'Emergency' Response

from the yikes dept

Yesterday we wrote about an already troubling attempt by Senator John Cornyn to attach a dangerous amendment to the Senate's ECPA reform bill that would massively expand what kinds of electronic communications the FBI has access to (as we noted, the FBI already pretends it has access to this very info, so really this law would be papering over the FBI's illegal collection of this info). But there's another amendment, put forth by Senator Jeff Sessions, that is just as, if not more, troubling. It's basically creating a massive loophole in the 4th Amendment, saying that any and all basic oversight can be tossed out the second the FBI declares the situation to be an "emergency."

The amendment would allow the government to bypass the warrant requirement in times of claimed emergency. Specifically, it would mandate that providers turn over sought-after data in response to a claimed emergency from federal, state, or local law enforcement officials. Under current law, companies are permitted, but not required, to comply with such emergency — and warrantless — requests for data.

There are two huge problems with this proposal. First, it appears to be responding to a problem that doesn’t exist. Companies already have discretion to make emergency disclosures to governmental officials, and proponents of the legislation have failed to identify a single instance in which providers failed to disclose sought-after information in response to an actual, life-threatening emergency. To the contrary, the data suggest that providers do in fact regularly cooperate in response to emergency requests. (See the discussion here.)

Second, and of particular concern, the emergency disclosure mandate operates with no judicial backstop. None. Whatsoever. This is in direct contrast with the provisions in both the Wiretap Act and Foreign Intelligence Surveillance Act (FISA) that require companies to comply with emergency disclosure orders, but then also require subsequent post-hoc review by a court.

Even a long-term law enforcement guy, James Trainum, is worried about the impact of such a law:

In my 27 year career in law enforcement, the majority of which I spent as a homicide detective with the Metropolitan Police Department of Washington, D.C., I sought and obtained communication records in the majority of my investigations.  I encountered no problems obtaining these records under the current law and in the rare, truly emergency situation, the law posed no undue burden.  I have found that complying with the requirements to obtain records in a non-emergency situation actually helped me build stronger cases because, by following the rules, the evidence was unassailable in court.  Unfortunately, too many of my colleagues, for whatever reason, would try to take the shortcuts that the new law would encourage. 

Changing the emergency exception law is unnecessary.  The law permits providers to disclose private communications to the government whenever they have a good-faith belief that such disclosure is required to respond to an emergency.  Furthermore, emergency exceptions are quite uncommon.  For example, in 2014 Google received only 342 emergency requests, compared to 20,280 subpoenas and search warrants, and information was provided in response to the vast majority of those emergency requests.  If a provider finds a problem with the request, law enforcement can always revise it to address concerns.

As we've discussed, back in April the House voted unanimously to fix ECPA. And while the Senate has dragged its feet until now, it's disappointing to see Senators like Sessions and Cornyn now try to attach dangerous amendments to ECPA reform that basically destroy whatever good that is in there. Both of those Senators should be ashamed -- and their colleagues should reject these proposals.

Filed Under: 4th amendment, ecpa, ecpa reform, emergencies, jeff sessions, warrants


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  • identicon
    Anonymous Coward, 8 Jun 2016 @ 8:37am

    Unless...

    Unless this becomes a constitutional amendment the law will have no power.

    But hey, we don't hold them responsible as citizens anyways so what is the point?

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

    • identicon
      Anonymous Coward, 8 Jun 2016 @ 1:50pm

      Re: Unless...

      He's arguably committing a treasonous act against the American public, by directly aiding one of their biggest enemies. Add to this the rampant criminality that the FBI gets away with on a normal scale, and ytou have a recipe for something much, much worse than the worst elements of the Red Scare.

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

  • identicon
    Rich Kulawiec, 8 Jun 2016 @ 8:40am

    The United States of Emergency

    Specifically, it would mandate that providers turn over sought-after data in response to a claimed emergency from federal, state, or local law enforcement officials.

    Said emergency already exists, and has existed for nearly 37 years: it was declared by President Carter and remains in effect. It's not the only one, either -- far from it: Special report: America's perpetual state of emergency

    So if this becomes law, it will instantly hand the FBI unlimited, unreviewed, perpetual access to anything it wants.

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

    • identicon
      Anonymous Coward, 8 Jun 2016 @ 9:12am

      Re: The United States of Emergency

      Yea, I think it is pretty clear that the US Government is testing American Citizens right now.

      They are now in line to push illegal laws as quick and as fast as they can to foist their control over everything and will not stop until blood spills.

      Everything is in place.
      Peaceable assembly is ignored by both citizens and government.
      Unrest is increasing.
      Government has been creating a self fulfilling prophecy of driving citizens to insurrection in the name of wanting to stop one.
      The actions and words of the founders of the nation are not only massively ignored but sullied by the average American citizen they have been made literally illegal by the American government under the terrorism farce.
      We are massively importing non-citizens to help water down the principals and ideals of liberty with people that understand nothing other than corruption and socialism.
      The Justice system is anything but, Judges regularly allow the government to submit illegally and illegitimately gathered evidence in the name of "good faith". They accept secret laws as tools to imprison citizens, and do not require law enforcement to know the very laws they were trained to enforce.
      Judges work through politics instead of justice and make rulings according to race, religion, or party affiliation rather than the intent and letter of the law.

      America is wholesomely fucked up right now and is in a position to replace Germany on the world stage as a great tyrant the same as Russia and China right now.

      The people around the world are clamoring for one world governments and a bastard king to rule over them, installed by a secretive but rich and powerful banker elite. The lies of global economy and multiculturalism is eating everything away and their champions oblivious to their own loses as the vanguard to poverty!

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

      • identicon
        Anonymous Coward, 8 Jun 2016 @ 3:02pm

        Re: Re: The United States of Emergency

        the american government has been actively teaching police departments for years now that the founding fathers were terrorists and anyone that knows and believes in their constitutional rights are to be treated as potential domestic terrorists.

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

        • identicon
          Anonymous Coward, 8 Jun 2016 @ 5:49pm

          Re: Re: Re: The United States of Emergency

          Meanwhile the real domestic terrorists are coddled and pandered to like some sort of deity.

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

      • identicon
        Wendy Cockcroft, 9 Jun 2016 @ 5:35am

        Re: Re: The United States of Emergency

        The people around the world are clamoring for one world governments and a bastard king to rule over them, installed by a secretive but rich and powerful banker elite. The lies of global economy and multiculturalism is eating everything away and their champions oblivious to their own loses as the vanguard to poverty!

        You'e not fooling anyone, AC. https://en.wikipedia.org/wiki/Dark_Enlightenment

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 8 Jun 2016 @ 9:33am

      Re: The United States of Emergency

      This is why people who actually know what they're doing are in politics and not tinfoil hat idiots that post on Techdirt.

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

      • identicon
        Anonymous Coward, 8 Jun 2016 @ 9:44am

        Re: Re: The United States of Emergency

        Well sure, the people that work in politics do in fact know what they are doing, it's just the folks are staying they are corrupt which is true as well.

        Has nothing to do with a tin foil hat, not only has these things been explained by the founders, there are a lot of news and video sources making it very clear.

        Tinfoil hats are for people operating with more certainty than it reasonable with very little to no reliable information. The corruption in this case is a matter of public fucking record!

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

        • identicon
          Anonymous Coward, 8 Jun 2016 @ 9:52am

          Re: Re: Re: The United States of Emergency

          Well certainly the nutters and privacy absolutists have shown that it's easy to call someone corrupt without proof just because they have no other argument.

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

          • identicon
            Anonymous Coward, 8 Jun 2016 @ 10:32am

            Re: Re: Re: Re: The United States of Emergency

            Hmmm... Let's see.

            - Ad hominem attack... Check.

            - Dismissive label applied to commenter w/o providing any factual argument to refute commenter's position... Check.

            - Surveillance-State and State-corruption apologist tone to own comments... Check.

            Is that you "Whatever"? If not, can you pop your head over your cube wall and tell him everyone at TD says hi.

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

          • identicon
            Anonymous Coward, 8 Jun 2016 @ 10:38am

            Re: Re: Re: Re: The United States of Emergency

            Sit down Hillary!

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

      • identicon
        Anonymous Coward, 8 Jun 2016 @ 11:03am

        Re: Re: The United States of Emergency

        That tin foil hat looks good on you.

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

    • identicon
      Anonymous Coward, 8 Jun 2016 @ 3:00pm

      Re: The United States of Emergency

      legal access you mean, I doubt I am the only one that believes they already access such things illegally.

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

  • identicon
    Anonymous Coward, 8 Jun 2016 @ 8:56am

    God damn it. So in the House version, they had this initially, but they removed it and "compromised" by not giving the users any warrant notice anymore.

    And now after this "compromise", the Senate version is introducing the emergency loophole again?

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

  • identicon
    Anomalous Cowherd, 8 Jun 2016 @ 8:58am

    We already have perpetual wars, why not perpetual emergencies?

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

  • identicon
    Whoever, 8 Jun 2016 @ 9:04am

    A bridge too far?

    Perhaps a law that so egregiously violates the 4th Amendment might prompt the Supreme Court justices to actually read and apply it.

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

    • identicon
      Anonymous Coward, 8 Jun 2016 @ 9:32am

      Re: A bridge too far?

      doubt it. SCOTUS has already allowed the perversion of 3rd party doctrine and the concept of "reasonable" to water the 4th down essentially to nothing other than a literal dog show. If a dog barks or you share your data with a 3rd party then its all fair game.

      This law is not about gaining new power, it is about solidifying it so that a future judge will not have an easy time trying to enforce the 4th amendment in cases encouraging them to give up and act as nothing other than a kangaroo court. Just imagine the first Judge that says, law invalid, it is in breach of the 4th... they will just "talk" to the judge in chambers and the judge will either submit as a pasty or become very worried about his career.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 8 Jun 2016 @ 9:32am

    Oh, look.

    Techdirt whining about something they don't understand and pushing tinfoil hat nonsense. I'm so surprised. Not.

    Is this Techdirt? https://s-media-cache-ak0.pinimg.com/236x/19/d7/03/19d703df446b37acc5825a54f6c5615f.jpg

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

    • identicon
      Anonymous Coward, 8 Jun 2016 @ 10:04am

      Re:

      Why don't you go ahead and educate us then?

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

    • identicon
      Anonymous Coward, 8 Jun 2016 @ 10:36am

      Re:

      So tell us, Chicken Little, what part of the sky is falling today?

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

    • icon
      Mike Masnick (profile), 8 Jun 2016 @ 11:51am

      Re:

      Techdirt whining about something they don't understand and pushing tinfoil hat nonsense. I'm so surprised. Not.


      Let me explain how this works: if you think we're wrong about something, *you provide evidence* and *explain why we're wrong*. When you just say "wrong" and add an ad hominem attack, it doesn't increase your credibility any.

      Multiple experts have now written about this amendment raising concerns, including law professors and law enforcement folks. If you have an alternative take, please provide it. Otherwise, it's difficult to take you seriously.

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 8 Jun 2016 @ 12:02pm

        Re: Re:

        Provide "evidence" to sensationalism and non-sensical wingnut talking points? Let's face it, this site is just the blog version of Faux News.

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

        • icon
          Gwiz (profile), 8 Jun 2016 @ 12:13pm

          Re: Re: Re:

          Provide "evidence" to sensationalism and non-sensical wingnut talking points?


          Ok then, how about you simply express why you think this amendment is a good idea?

          Thus far all you have contributed to this discussion is childish insults. Although I doubt it, it is possible you you might have an opposing viewpoint which deserves consideration, so let's hear it, Skippy.

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

        • identicon
          Anonymous Coward, 8 Jun 2016 @ 12:22pm

          Re: Re: Re:

          So, you do get how you're making Mike's point for him, right?

          So lame.

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

        • icon
          Mike Masnick (profile), 8 Jun 2016 @ 2:21pm

          Re: Re: Re:

          Provide "evidence" to sensationalism and non-sensical wingnut talking points?

          This isn't difficult: provide *any* evidence at all that what we wrote is a misreading of the amendment presented here. Ad hominem insults do not count.

          Is it really that difficult to prove how what we said was wrong? Because if it is, then that seems to suggest that you're full of shit.

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

  • icon
    Murray (profile), 8 Jun 2016 @ 9:50am

    Why only the 4th Amendment?

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

    • identicon
      Anonymous Coward, 8 Jun 2016 @ 10:09am

      Re:

      Are you perhaps trying to suggest that it might seem a bit hypocritical for this writer to be troubled by the idea of a potential "Giant Hole In The 4th Amendment" while silently supporting the de facto "Giant Hole In The 2nd Amendment" that already exists where he lives and works?

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

      • identicon
        Anonymous Coward, 8 Jun 2016 @ 11:19am

        Re: Re:

        This is pretty normal and not only socially acceptable but applied through social peer pressure.

        Right now those in favor of the 4th are against the 2nd and those in favor of the 2nd are against the 4th.

        Very few patriots currently walk American Soil.

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

        • icon
          Uriel-238 (profile), 8 Jun 2016 @ 12:12pm

          Um...

          I'm pro-4th and pro-2nd. But there is little left about which to be patriotic. Our landmarks are pretty sweet so long as we don't bust them open for oil or mining.

          The US has turned into the same feudal hodgepodge of corporate kings and nobles that we were trying to escape. The new bosses are worse than the old bosses in that they can disavow being bosses, hence treat us common schlubs less like vassals and more like cattle.

          All our guns are doing us no good, because we're too stupid to realize we need to organize and resist. We keep telling ourselves that it gets better, or worse that God wants us to obey our torturey, drone-strikey, surveillancey, police-statey lords because the bible explicitly endorses the current regents. (e.g. Romans 13)

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

          • identicon
            Anonymous Coward, 8 Jun 2016 @ 1:36pm

            Re: Um...

            I support both as well, but I do not speak for the majority. I agree, there is a good deal of borderline violent feudalism going on right now, just look at the Bernie supporters!

            And no, the bible does not endorse the current regents, where in the world to you get that idea? The Bible refers to all government as beasts because they usurp the authority of God.
            And also remember, its says to give what is owed. A tyrant is owed nothing but the pointy end. And last but not least, not all things in the Bible are what you think they are. Wisdom is given to those legitimately seeking it and held at bay from those looking to abuse it. If the ruler is in Service to God, you will know it, and if not, no need to heed a single bit of their authority.

            The bible is a great starting book and helpful to edify the lay folk, but the faithful will transcend its pages.

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

            • icon
              Uriel-238 (profile), 8 Jun 2016 @ 2:48pm

              The bible endorses the state, even if it's run by tyrants.

              As I said, Romans 13. There are other places, but indeed, the divine right of kings is pretty clear: The biblical god chooses which authorities prevail, and it is the duty of the parishioner to obey, and pay taxes.

              As far as I'm concerned, and our framers, it is up to us to rely on rationality as to whether our officials are paragons or tyrants, but according to the bible disobedience to them is sin.

              Unless you are saying you get to pick and choose which scriptures to obey or to disregard, you get to decide for yourself what is right or wrong. Or what is parable or literal.

              Neither the Catholic Church nor the State of Texas (including its current dominionist governor) feel parishioners should be allowed to make those decisions, rather should practice obedience to the last. Of course they're arguably tyrants, themselves.

              I don't follow the bible, myself, incidentally. I just know a lot of it and about it, given it's used often to justify atrocity and inequality.

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

              • identicon
                Wendy Cockcroft, 9 Jun 2016 @ 5:46am

                Re: The bible endorses the state, even if it's run by tyrants.

                Christian here. Romans 13:1-7 is about everyday obedience. If the obedience was supposed to be total per your argument Christianity wouldn't exist today as it has been proscribed many times by the Romans and by others. Even today in some countries proselytizing is forbidden by law.

                So, then, how to address the tyrant problem?

                For the most part even tyrants want an orderly society, so live a quiet orderly life.

                Okay, what about democracy? Ah, that. Well per the democratic system we the people are in charge and the people we vote for are, in theory, our representatives to carry out the will of the people in line with the law of the land. Does that mean we're the tyrants, then?

                Well we seem to have outsourced the actual governance and governing of the state to tyrannical people on the grounds that our thought leaders said so, i.e. we're too lazy to think for ourselves and have been lulled into partisan binary politics because thinking is hard; it's easier to simply pick one of two sides.

                I've always said we need to hold our representatives to account and keep their feet to the fire and it emphatically DOESN'T contradict my faith; they're supposed to be our servants, not our masters. We appear to have forgotten that.

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

            • identicon
              Anonymous Coward, 8 Jun 2016 @ 6:00pm

              Re: Re: Um...

              "violent feudalism going on right now, just look at the Bernie supporters!"

              This is what you take away from reading the prior post? How sad.

              Apparently you misunderstood a large portion of what the post had to say about the "feudal hodgepodge of corporate kings and nobles".

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

          • identicon
            Anonymous Coward, 8 Jun 2016 @ 4:23pm

            Re: Um...

            All our guns are doing us no good, because we're too stupid to realize we need to organize and resist.

            Therein lies the contradiction at the heart of a democracy, organisation needs leaders, leaders try to impose their wills on the people, and we are back with kings and nobles.

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

            • identicon
              Wendy Cockcroft, 9 Jun 2016 @ 5:49am

              Re: Re: Um...

              ^THIS!!

              You can't impose reform at the point of a gun; you can't govern, even as a tyrant, without the consent of the people. When the people have had enough of this nonsense you will see change. At the moment they are willing to put up with it so the best a violent attempt at revolution will achieve is dead bodies on the deck and a lot of good old boys in jail on terrorism charges. Put the boomsticks away, they're not the answer.

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

  • identicon
    Anonymous Coward, 8 Jun 2016 @ 10:42am

    More trolls than normal here. Not providing evidence justifying their accusations of Mike being hypocritical.

    Standard trolling. Try to manipulate discourse by pushing people to operate on their groundless narratives.

    To the trolls - put up or shut up. You make accusations? Give your damn proof.

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

  • icon
    Uriel-238 (profile), 8 Jun 2016 @ 12:01pm

    They're all "emergencies."

    It's all for sake of national security.

    We're all terrorists and spies.

    There's Child porn involved.

    The agents are acting in good faith.

    Always.

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

  • identicon
    Personanongrata, 8 Jun 2016 @ 12:53pm

    Treasonous Fraction of American Turdstains

    Senator Jeff Sessions Looks To Blast A Giant Hole In The 4th Amendment For 'Emergency' Response

    Today in the US Jeff Sessions (and his ilk) in his attempt(s) at subverting the US Constitution is labeled -- US Senator.

    In past eras in the US Jeff Sessions and his Constitution subverting ilk would have been labeled what they truly are -- traitors.

    Swearing an oath to protect and defend something does not mean you tear it down from within based upon specious claims for expedient motives.

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

  • icon
    That One Guy (profile), 8 Jun 2016 @ 1:40pm

    Bar? What bar?

    Specifically, it would mandate that providers turn over sought-after data in response to a claimed emergency from federal, state, or local law enforcement officials.

    On top of what Rich Kulawiec noted above about how the US has been in a 'state of emergency' for several decades now with no end in sight, by setting the 'bar' low enough that simply claiming an emergency is enough to trigger the law they might as well come out and admit 'We think the fourth is outdated and shouldn't apply any time it gets in the way of what we want to do'.

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

  • identicon
    Anonymous Coward, 8 Jun 2016 @ 1:51pm

    So the patriotic troll force is in today doing it's thing because you know, service to country and agency. So sad there is nothing but hot air behind it and a total lack of ability to be anything other than caustic.

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

  • identicon
    Anonymous Coward, 8 Jun 2016 @ 2:28pm

    What 4th amendment? Didn't we figure out that it ceased to exist after the NSA revelations?

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

  • identicon
    Anonymous Coward, 8 Jun 2016 @ 2:58pm

    just announce the constitution no longer applying, the presidency now for life and that will end the slow shredding of the basic human rights the country was founded on.

    Instead they will have the police tyranny they seem to desire so badly.

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

  • identicon
    Anonymous Coward, 8 Jun 2016 @ 7:49pm

    Someone said something mean about me on the Internet. This is an EMERGENCY! My FEELINGS were hurt damnit! I demand details! All of them!

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

  • identicon
    Anonymous Coward, 8 Jun 2016 @ 8:41pm

    Perry, Cruz, Gohmert, Sessions....

    I feel that it is in our best interest to convince Texas republicans to reconsider their decision to secede from the United States. Is there a petition for that somewhere?

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


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