The technology news website CNET reported on Tuesday that Sen. Patrick Leahy, D-Vt., had “quietly rewritten” legislation originally intended to protect Americans’ privacy.
The proposed amendments to the bill, according to CNET, would give 22 federal agencies access to citizens’ email accounts, Google Docs files, Facebook wall posts and Twitter direct messages.
Declan McCullagh, the chief political correspondent for CNET and a former Wired magazine Washington bureau chief who specializes in electronic privacy reporting, alleged that Leahy, chair of the Senate Judiciary Committee, changed the bill in response to complaints from law enforcement agencies. McCullagh cited three off-the-record sources.
Leahy and his staff responded to a torrent of negative responses via social media on Tuesday. Eight hours and more than 95,000 Facebook shares and 8,500 Tweets after the first CNET post went up early Tuesday morning, McCullagh reported in a second post that afternoon that the senator made an “about-face.”
David Carle, Leahy’s spokesman, says that McCullagh “misreported” the story from the get-go.
The article claimed that Leahy supported a waiver for federal agencies to access electronic records with a subpoena instead of a court-ordered search warrant based on probable cause.
That assertion, Carle says, is incorrect. Leahy does not support the amendments and never reversed his position on the original bill.
“His aim is to strengthen privacy; he would not favor an agency waiver,” said Carle. “The bill he favors is the bill as he introduced it.”
Leahy wants to require the government to obtain search warrants before gaining access to private email. He introduced legislation to that effect in May 2011.
In an email, McCullagh said he’d attributed the support for warrantless access to Leahy because informed sources told him that the Vermont senator supported the draft amendment. “CNET stands by our article,” McCullagh wrote.
McCullagh said he’d also tried to confirm the senator’s official position before publication. “Leahy’s office has yet to give me an on-the-record response,” he wrote.
Carle reiterated that as committee chairman, Leahy’s name would be on any draft legislative language, but that this doesn’t mean he supports the amendments. He said several such drafts were being circulated, but that he didn’t know who authored the amendment that McCullagh obtained and posted. He added that the idea that agencies could have a waiver from requiring warrants was not new.
“It puts everyone in a difficult position when a respected reporter gets it so blatantly wrong and won’t say so,” Carle said.
Questions about email and electronic privacy have recently been raised in light of revelations that the FBI accessed emails between Gen. David Petraeus, the CIA chief, and a paramour. The correspondence led to Petraeus’ subsequent resignation from the CIA.
Leahy declined to be interviewed for this article. Carle said the senator didn’t want to confuse his longstanding advocacy for greater digital privacy with more recent questions raised by the FBI Petraeus investigation. He said Leahy has attended classified briefings about the Petraeus incident.
Law enforcement opposition to warrant requirement
The bill, which is slated to come before the Senate Judiciary Committee next Thursday, is actually an amalgam of two measures — revised provisions of the original ECPA and a revision of the 1988 Video Privacy Protection Act, which would allow companies like Netflix to allow video-sharing via Facebook. The video portion of the bill passed the House earlier this year. The ECPA was supposed to be heard on Sept. 20, but Leahy delayed its consideration until after the election.
Carle wouldn’t say whether opposition from law enforcement in September caused the delay, but said that Republican committee members prevented consideration of the bill in September. He said he doesn’t know the Obama administration’s position on this substitute bill, aside from that the Department of Justice and the FBI are key stakeholders most affected.
Law enforcement groups including the National District Attorneys’ Association and the National Sheriffs’ Association organizations oppose a warrant requirement for email snooping, according to a previous report from McCullagh. Police agencies say the warrant process would hamper criminal investigations. President Barack Obama’s Justice Department also opposes the warrant stipulation.
Carle said Leahy’s roles as a leading civil libertarian and the Senate’s former leading prosecutor meant he could understand perspectives from both privacy advocates and law enforcement, and work out compromises.
The American Civil Liberties Union recently filed a Federal Freedom of Information request for information about police interception of personal communication to determine how often law enforcement agencies were accessing private information. According to documents from the Justice Department, federal agencies were authorized to conduct real-time reviews of social networks and email provider networks in 1,661 instances in 2011, and 922 times in 2010.
According to McCullagh, the proposed amendments would further enhance existing, unfettered access to private correspondence. State and local law enforcement would be able to track email networks, including university systems. Any police officer would have access to accounts without a warrant or court review in an emergency. In addition, law enforcement would not be required to notify customers that their accounts had been viewed for 10 business days, and this notification could be postponed for up to 360 days, McCullagh reports.
Carle said several changes to the bill had been floated as “ideas” and discussed among committee members.
In a statement, Leahy said: “The rumors about warrant exceptions being added to ECPA are incorrect. … As normally happens in the legislative process, these ideas are being circulated for discussion. One of them, having to do with a warrant exception, is one that I have not supported and do not support.”
The original bill requires the government to notify the subject of a search warrant that their information has been accessed, within three days, though this can be extended to 90 days by a court order.
Associate Deputy Attorney General James Baker of the Justice Department told the Senate Judiciary Committee in 2011 that “Congress should consider the adverse impact on criminal as well as national security investigations if a probable cause warrant were the only means to obtain such stored communications.”
Baker said the government may already secure certain paper documents via subpoena, and he questioned whether electronic records should be subjected to a higher standard. He added that some federal agencies like the SEC and the FTC don’t have authority to obtain search warrants, which could impede their investigations.
Under current law, the federal Electronic Communications Privacy Act, introduced by Leahy in 1986, allows the government to access electronic communications without a warrant, if they are more than 180 days old. The bill was introduced at a time when ‘old’ emails were considered abandoned, since back then most users downloaded emails to their hard disks frequently, instead of leaving them stored on third-party servers, as often happens now with services like Gmail and Yahoo.
In earlier efforts, Leahy introduced a more ambitious reform bill, the ECPA Amendments Act, in May 2011.
It hasn’t moved to a vote since then, in the committee Leahy chairs.
Carle said Leahy’s staff were still working on the more comprehensive reform bill, which could take years to move forward, because it includes provisions related to tracking cell phone locations.
Privacy advocates defend Leahy
Jim Dempsey, vice president of public policy for the pro-privacy Center for Democracy and Technology, said that the ideas attributed to Leahy in the CNET article actually originated from the Republican ranking member Chuck Grassley, R-Iowa. From his talks with those following the legislation, there was no hint that Leahy supported a compromise on the subpoena question.
Dempsey said the ideas about subpoena access had been circulating for some months, with draft legislation morphing daily. When Leahy presented the package McCullagh posted, as the chair managing the legislation and potential amendments, to privacy and Internet groups, Dempsey said, they vocally opposed it, which led Leahy to pull back from the proposal. It was Leahy’s attempt to reach a compromise that led him to author the package, said Dempsey, though that didn’t mean that the ideas in it came from Leahy, nor that he supported its specific provisions.
Marc Rotenberg, executive director of the Electronic Privacy Information Center, said McCullagh “had been right to call attention to it [the draft amendment], but wrong to ascribe the proposed changes to Sen. Leahy. It actually reflects a misunderstanding on his part, on how the mark-up and amendment process works.” He said that many draft bills circulate before the committee meeting, and that until the amendment is introduced and discussed, it’s unclear where committee members stand.
Rotenberg, who’d worked with Leahy on the Senate Judiciary committee previously and who helped draft the 1986 ECPA, saw Leahy as a champion for increased digital privacy. He said that from talks with people who follow the legislation, there’d been no hint at all that Leahy supported a change favoring warrantless access. Rotenberg clarified that the language in the draft amendment Declan posted would be a significant change, and one which he wouldn’t support.
Asked if there was a chance that Leahy initially supported the changes, as CNET’s article says, ACLU Vermont executive director Allen Gilbert said: “I guess there’s always the chance, but I certainly haven’t seen any evidence that that’s true. It would be out of character with his past approach to the issue; he’s been really good on digital privacy generally.”
Gilbert added that thanks to Leahy’s role in the controversy over the unpopular Protect IP Act last year, he and his staff should be wise enough now to realize that a last-minute policy switch would quickly raise a public outcry.