Pat pirouettes on privacy (or maybe not)

[See below for Pat Leahy’s response to the CNET article cited here and for the follow-up CNET article.]

Only hours after the Republican Study Committee retracted a highly praised report on Copyright reform, Vermont Senator Pat Leahy has done them one better. He has taken a bill intended to limit government surveillance of your Internet activity and morphed it into one that gives you even less online privacy than you have now.

Consider these two headlines:

The first one appeared yesterday in The St. Albans Messenger (“Vermont’s oldest evening newspaper”) and begins:

A bill to protect privacy online written by U.S. Sen. Patrick Leahy, D-Vt., will be taken up by the Senate Judiciary Committee when Congress returns from recess next week. The bill would require law enforcement to obtain a warrant, and thus show probable cause, before gaining access to a person’s email, Facebook messages or other online communications.

The second, reported today by Declan McCullagh in CNET News, provides quite a different version:

A Senate proposal touted as protecting Americans’ e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law. CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail, is scheduled for next week.

McCullagh includes text of the revised bill, which grants warrantless surveillance privileges to any “independent regulatory agency” defined in federal code. Here’s that section of code:

Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing Finance Agency, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Regulatory Commission, the Securities and Exchange Commission, the Bureau of Consumer Financial Protection, the Office of Financial Research, Office of the Comptroller of the Currency, and any other similar agency designated by statute as a Federal independent regulatory agency or commission.

The Federal Maritime Commission? Mine Enforcement Safety and Health? The Postal Regulatory Commission? OSHA?

Apparently Washington isn’t as gridlocked as we’ve heard, at least not when a sufficiently powerful force weighs in. In this case, the powerful force is Big Brother, who’s unhappy about limits on his ability to spy on the rest of the family.

Update from the ever-vigilant Mike Masnick over at Techdirt:

There’s some debate over how serious this proposal was. A new report claims that this amendment wasn’t likely to be seriously considered, even though it does exist. Declan McCullagh is standing by his story, and saying that the claim that this amendment won’t be seriously considered is in response to the public outcry about it.

And here is Pat Leahy’s response:

The rumors about warrant exceptions being added to ECPA are incorrect. Many have come forward with ideas for discussion before markup resumes on my bill to strengthen privacy protections under ECPA. 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 whole thrust of my bill is to remedy the erosion of the public’s privacy rights under the rapid advances of technology that we have seen since ECPA was first enacted thirty years ago. In particular, my proposal would require search warrants for government access to email stored by third-party service providers – something that of course was not contemplated three decades ago.

And perhaps this is the last word, from Declan McCullagh:

Leahy scuttles his warrantless e-mail surveillance bill

After public criticism of proposal that lets government agencies warrantlessly access Americans’ e-mail, Sen. Patrick Leahy says he will “not support” such an idea at next week’s vote.

The vote is still scheduled for next week. Let’s see what the bill says and who votes how.


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