Senate Signals a Quick Unsend on Allowing Warrantless Email Searches

But Senator Patrick Leahy reportedly prepares a bill to open all your electronic communications to government scrutiny.

U.S. Attorney General Eric Holder points at Senate Judiciary Committee Chairman Patrick Leahy as if to ask, ‘Is this guy who would write a bill allowing for warrantless government surveillance of personal email?’ (Photo: Chip Somodevilla/Getty).

Nov 20, 2012· 2 MIN READ
is a Los Angeles-based writer whose work has appeared Atlantic, Back Stage, The Christian Science Monitor and The Hill.

UPDATE: Senator Patrick Leahy's office fully denied the CNET report on Tuesday.

"The rumors about warrant exceptions being added to ECPA are incorrect," Leahy said in a statement posted Tuesday afternoon on his official website. "I have not supported and do not support" a warrant exception.

"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," he continued. "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."

Some privacy advocates are up in arms and others are dismissing a report that warns a pending Senate bill could allow for warrantless surveillance of Americans’ email.

CNET reported Tuesday that Senator Patrick Leahy had “rewritten” a bill before the Senate Judiciary Committee “to allow more than 22 agencies—including the Securities and Exchange Commission and the Federal Communications Commission—to access Americans’ email, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant.”

The story generated a hullabaloo inside the Beltway after the widely read Drudge Report linked to the article through its top headline.

MORE: If Ex-General Petraeus’s Emails Are Fair Game, Are Yours?

But an aide on the Senate Judiciary Committee cautioned that the legislation, which is a substitute to a bill—H.R. 2471—previously passed by the House, hasn’t been finalized. Moreover, the aide assures TakePart that the text as it currently exists does not authorize warrantless searches of Americans’ email.

The bill is set to be taken up by the committee at an executive business meeting on November 29. In the meantime, activist groups, including the American Civil Liberties Union, are taking a wait-and-see approach.

If CNET’s report proves accurate, Calabrese says the ACLU will mobilize against the bill. “There may be things in there that are problematic,” he says. “If there are, we’ll let them know.”

“We’re monitoring the situation,” Chris Calabrese, the ACLU’s legislative counsel for privacy-related issues, tells TakePart.

The main requirement of the ACLU is that the bill, which is an update to the decades-old Electronic Communications Privacy Act (ECPA), contains a provision requiring warrants, not just subpoenas, for law enforcement to snoop on citizens’ email, Facebook accounts or other electronic communications.

“It’s critical that it’s a warrant,” says Calabrese.

Calabrese says he read the text of the legislation when Leahy introduced it through a manager’s amendment six weeks ago and was satisfied it met the ACLU’s privacy requirements.

“We strongly supported the draft that was put forward before,” he says. “We’d like him to stick with that. We didn’t see any need for significant changes to it.”

Back in 2011, when Leahy unveiled the original bill to amend ECPA, he touted it as an effort to preserve citizens’ privacy. “At a time in our history when American consumers and businesses face threats to privacy like no time before, we must renew the commitment to the privacy principles that gave birth to the ECPA a quarter century ago,” Leahy said in a statement then.

But in the CNET report, Declan McCullagh noted that Leahy is a former prosecutor who “has a mixed record on privacy.”

The ACLU’s Calabrese disagrees, arguing that the Vermont Democrat, who chairs the Judiciary Committee, has been supportive of privacy rights.

“Chairman Leahy has always been a champion on these issues,” he says. “I’m going to continue to believe that [he’s] going to push for a warrant.”

If CNET’s report proves accurate, Calabrese says the ACLU will mobilize against the bill. “There may be things in there that are problematic,” he says. “If there are, we’ll let them know.”

Do you expect the Senate version of H.R. 2471 to make your emails more or less private? Leave your reasons in COMMENTS.