Sen. Patrick Leahy successfully steered a favorable unanimous vote on electronic privacy legislation from the Senate Judiciary committee on Thursday, clearing another hurdle to updating a major decades-old privacy law.
The legislation seeks to update the Electronic Communications Privacy Act (ECPA), a 1986 act introduced by Leahy and criticized by privacy experts as outdated and legally confusing.
One key thrust of today’s legislation, now headed to the Senate floor, requires the government to obtain search warrants to access email held by a third-party provider. Previously, the ECPA upheld a 180-day legal standard, which meant that emails older than 180 days could be accessed without a warrant.
“Three decades after the enactment of ECPA, Americans face even greater threats to their digital privacy, as we witness the explosion of new technologies and the expansion of the government’s surveillance powers,” Leahy said in an opening statement during the committee meeting.
VTDigger reported last week on the controversy generated when CNET writer Declan McCullagh reported that Leahy had rewritten the bill drastically behind the scenes, to appease the law enforcement community. Leahy’s office blasted CNET’s initial report as serious misreporting.
Sen. Chuck Grassley, R-Iowa, expressed concerns about the bill today, proposing an amendment that was voted down 6-11 in committee which would have allowed subpoena access for investigations related to child abduction, pornography, and violent crimes against women.
But Grassley eventually backed the bill’s passage out of committee.
Addressing concerns from the law enforcement community, some of whom fear that new rules could hamper effective investigations, the bill also allows law enforcement officials to seek a court order delaying a requirement to notify individuals whose communications have been accessed, from a 10-day to a 180-day timeframe.
Other government agencies, dealing with civil and not criminal cases, can only request a court order allowing them up to 90 days delayed notification.
The bill also allows civil discovery subpoenas, alongside the already permitted administrative and grand jury subpoenas, to be used to obtain routing and other non-content information from service providers, at the request of the Department of Justice and the Federal Trade Commission.
Jim Dempsey, vice president of the Center for Democracy and Technology, downplayed the importance of these changes, saying that under current law, there isn’t any obligation at all for the government to notify people when a warrant has been used. “Under current law, the government must give notice if it uses a subpoena, but notice can be delayed for 90 days, subject to renewal.”
“If the government uses a warrant, it does not have to give any notice whatever. Under the Leahy bill, you have to use a warrant all the time, and it will have to give notice all the time, up to 180 days [via court order], subject to renewal. So, in net, this provision as well is an improvement to current law,” he said.
There was no hint of the language, circulated as a draft previously, that would have allowed more than 20 government agencies to access email without a warrant, as first reported by McCullagh.
Leahy also made clear that the search warrant requirement does not alter existing federal national security, counter-terrorism, and other criminal laws.
Hanni Fakhoury, a staff attorney for the digital privacy group Electronic Frontier Foundation, welcomed the news about the legislation’s movement, but remained unsure about the future progress of the bill, as it heads to the Senate floor, and then later back to the House.
“While this is an encouraging first step, I think we have to be very careful that the bill doesn’t ultimately get watered down to where it’s meaningless,” said Fakhoury, of the bill’s future political process. “There has to be a strong desire to keep it substantially intact as it passed through the committee.”
Leahy spokesman David Carle said Leahy’s incoming House Judiciary chairman counterpart, Bob Goodlatte, R-Va., has expressed interest in pushing ECPA reform during his tenure, adding that he found today’s unanimous vote “surprising,” with “Republicans virtually dropping their obstruction.”