US senator has not caved on e-privacy, aide says

Leahy remains focused on requiring law enforcement agencies to get court-ordered warrants before agencies access email, an aide says

The chairman of the U.S. Senate Judiciary Committee has not reversed course on email privacy and has not proposed to give U.S. agencies access to email and other electronic communications without search warrants, despite a news report to the contrary, an aide to Senator Patrick Leahy said Tuesday.

The Judiciary Committee is scheduled to vote on House Resolution 2471, a bill related to consumer consent to video service providers, on Nov. 29, and Leahy, the committee's chairman, has proposed amendments to the bill to address electronic communications privacy, according to information from the committee.

But Leahy, a Vermont Democrat who has pushed for electronic communications to be protected by court-ordered warrants, has not reversed course to propose that more than 20 U.S. agencies have access to email and other electronic communications through simple subpoenas, a Judiciary Committee aide said. CNET on Tuesday reported that Leahy, after law enforcement objections to his earlier position, has proposed amendments that would allow the U.S. Department of Justice, the Department of Homeland Security and other agencies access to electronic communications without court oversight.

Suggestions that Leahy has changed his mind are "off base," said the Judiciary Committee aide. "Senator Leahy does not support warrantless searches of email content," the aide added. "He looks forward to updating the nearly 30-year-old Electronic Communications Privacy Act, and has been working with a myriad of stakeholders to ensure any updates strike the right balance while also protecting the privacy rights of citizens."

Leahy, in May 2011, introduced the Electronic Communications Privacy Act Amendments Acts, which would require that U.S. law enforcement agencies get court-ordered search warrants before accessing electronic data stored with third-party vendors, such as cloud providers.

ECPA, passed by Congress in 1986, allows law enforcement agencies to gain access to unopened emails and files stored in the cloud for longer than 180 days through a subpoena, typically issued by a prosecutor, not a judge. Leahy has called the 180-day rule "outdated."

Several civil liberties groups and tech vendors have pushed for changes to ECPA, saying the rules allowing warrantless searches of emails and other electronic documents for longer than 180 days inhibits adoption of cloud services. Those groups have praised Leahy's bill, which has not moved forward in the Senate.

The DOJ has questioned whether Congress should make it more difficult for law enforcement agencies to gain access to electronic communications. ECPA helps law enforcement agents track terrorists, computer hackers, drug traffickers and other criminals, James Baker, associate deputy attorney general at the DOJ, said during a hearing in September 2010.

Leahy's proposed amendments to H.R. 2471 would implement the ECPA reform he's advocated in the past, according to information from the Judiciary Committee. Leahy's amendment would prohibit an ISP from "voluntarily disclosing the contents of its customer's email or other electronic communications to the government," according to a summary provided by the committee.

In addition, the Leahy proposal would subject the disclosure of email and other communications to "one clear legal standard -- a search warrant issued based on a showing of probable cause," the summary said.

The Center for Democracy and Technology, one of the groups calling for stronger protections for electronic communications, sees no change in Leahy's position on warrants for email, said Jim Dempsey, CDT's vice president for public policy. Leahy "remains very committed to the warrant standard," he said.

However, other members of the Judiciary Committee, including ranking Republican Chuck Grassley of Iowa, have resisted changes to ECPA, Dempsey said. Leahy has tried to find compromise, but the debate "remains very much in flux," he said.

People with concerns about ECPA subpoenas "should be concerned about what the other members of the committee think," Dempsey said. "Do other members of the committee recognize the critical importance of the warrant standard?"

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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