DALLAS, November 20, 2012 — Senator Patrick Leahy (D, Vt.) introduced a bill last year which was supposed to protect Americans’ privacy online. Leahy touted H.R. 2471 on his website as “including new privacy protections” and made much of the fact that it “required the government to obtain a search warrant” before reading private communications like e-mail. According to CNET, the network that broke the story this morning, all of this has changed following interference from federal agencies and law enforcement groups which objected to the bill in September.
Groups including the National District Attorneys’ Association and the National Sheriffs’ Association caused a bit of a kerfuffle two months ago when they urged Leahy to “reconsider acting” on amendments to the Electronic Communications Privacy Act “until a more comprehensive review of its impact on law enforcement investigations is conducted.”
CNET’s Declan McCullagh reported that Justice Department officials have also expressed displeasure about Leahy’s original bill. Associate Deputy Attorney General James Baker said in April 2011 that requiring a search warrant to procure American citizens’ e-mails could have an “adverse impact” on criminal investigations. Senator Chuck Grassley (R, Ia.) seems to side with Baker. It’s crucial, he said “to ensure we don’t limit [law enforcement’s] ability to obtain information necessary to catch criminals and terrorists who use electronic communication.” Grassley also reportedly suggested that requiring search warrants would lead to “increased burdens on the court system.”
Now that the afore-mentioned “comprehensive review,” has been conducted, Leahy has rewritten the bill which so offended government authorities, substituting a new package of amendments for his original H.R. 2471. Here’s the catch, though: these new amendments aren’t just a more watered-down version of the privacies ensured by H.R. 2471. The new amendments are the opposite of H.R. 2471.
Rather than a search warrant signed by a judge and based on probable cause, Leahy’s new amendments require law enforcement to obtain only a subpoena before reading many of the private communications of American citizens. They authorize any law enforcement agency to access accounts without any kind of court review if the agency maintains that the situation is an “emergency.” They provide for a delay of up to 360 days before notification of account-holders whose accounts have been intercepted. They say that service providers “shall notify” law enforcement before telling their customers they’ve been targeted by a court order, warrant, or subpoena.
The long and short of it is that Patrick Leahy has disgraced himself and abdicated his post as a defender of the constitutional liberties of the American people. Sadly, his actions are not even those of a misguided ideologue who believes strongly in the wrong things. He is a man who at one time professed to believe in a right thing and caved under the pressure of the little green dollars or the disapproving glances of the mighty.
This new collection of amendments will be voted on in the Senate in place of H.R. 2471. That vote is expected to take place sometime in the next week.
The 22 agencies that would receive civil subpoena authority for electronic communications under Leahy’s rewritten bill include the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, the National Labor Relations Board, and the Mine Enforcement Safety and Health Review Commission.
Under what circumstances intelligence agencies like the CIA and FBI should be permitted to obtain such personal information is a legitimate question. But that the Federal Reserve and the postal system and the Mine Safety Commission and the Federal Maritime Commission should be granted these rights certainly defies all reason. Indeed, one is left to wonder which agencies haven’t been given the ability to charge into the private affairs of US citizens armed with nothing more than a subpoena.
Because Leahy’s new bill is so unlike his original bill which received extensive media coverage and garnered considerable support among the public, there is a possibility for confusion among both senators and citizens. The supporters of civil liberties in the realm of internet privacy inhabit a big tent. They include libertarians, conservatives, and liberals alike. It is to be hoped that these constituents will be made aware of the vote that is impending and will also make their representatives in the Senate aware of their strong feelings about it.
“There is no good legal reason why federal regulatory agencies such as the NLRB, OSHA, SEC or FTC need to access customer information service providers with a mere subpoena,” said Washington DC lawyer Markham Erickson, in comments to CNET. “If those agencies feel they do not have the tools to do their jobs adequately, they should work with the appropriate authorizing committees to explore solutions.”
Pennsylvania businessman and political theorist Benjamin Franklin contributed a perhaps more enduring comment:
“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
UPDATE (3:20 PM): Amidst a whirlwind of public furor, Sen. Leahy’s office tweeted just a few minutes ago that the senator “is not working on a law to undermine email privacy.”
CNET reporter Declan McCullagh, who wrote the original piece, remains skeptical. “Alternate explanation: Sen. Leahy responded to public criticism,” he tweeted. “Senate Judiciary aides were definitely not saying that yesterday.”
McCullagh, however, has obligingly written a follow-up story, explaining,
“After public criticism of proposal to allow government agencies to warrantlessly access Americans’ e-mail, Senator Patrick Leahy says he will ‘not support’ such an idea at next week’s vote. Leahy’s about-face comes in response to a deluge of criticism today, including the ACLU saying that warrants should be required, and the conservative group FreedomWorks launching a petition to Congress — with over 2,300 messages sent so far — titled: ‘Tell Congress: Stay Out of My Email!’ A spokesman did not respond to questions today from CNET asking for clarification of what Leahy would support next week.”
The proposal is scheduled to be voted on next Thursday in the Senate Judiciary committee, which Leahy chairs, although it remains unclear what exactly will be the text of the bill that the Senator proposes, now that he has taken steps to distance himself from the version of the bill that was released by CNET earlier today.
A history buff, self-taught artist, and enthusiastic autodidact, Bryana brings her always politically incorrect and usually passionate views about politics and the theory of government to her readers. In addition to writing for the TWTC, she also writes for The College Conservative and maintains the official High Tide Journal at www.thehightide.com. You can also find her on twitter at @_Bryana_Johnson and on facebook.
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