Senate email privacy bill mutates, to the alarm of civil libertarians

“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,” reported computing website CNET on Tuesday morning.

That’s quite a reversal of fortune for the bill, sponsored by Senate Judiciary chairman Pat Leahy (D-VT).  He originally said the purpose of the bill was to “provide enhanced privacy protections for American consumers by requiring that the government obtain a search warrant” in order to read electronic communications.

Suddenly, it said just the opposite.  “Leahy’s rewritten bill would allow more than 22 agencies – including the Securities and Exchange Commission and the Federal Communications Commission – to access Americans’ e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant,” CNET explained.  “It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.”

This apparently came about due to pressure from the National District Attorneys’ Association, the National Sherrifs’ Association, and the Justice Department, none of whom were happy with the original language of Leahy’s privacy protection bill.  As Associate Deputy Attorney General James Baker put it, requiring a warrant to obtain such information could “impact adversely on the government’s ability to investigate crime and respond to national security and cyber threats.”

Baker’s position had support from Senator Chuck Grassley, ranking Republican on the Judiciary Committee, who worried about impeding the ability of law enforcement agencies to “obtain information necessary to catch criminals and terrorists who use electronic communication.”

The sort of privacy protection Leahy originally wanted to extend had support from various civil liberties groups on both the Right and Left, from FreedomWorks and the Competitive Enterprise Institute to the American Civil Liberties Union.  The ACLU promptly expressed displeasure with the new regime of warrantless email access, saying “we believe a warrant is the appropriate standard for any contents.”

A coalition of powerful Internet companies, including all the heavyweights – Apple,, Google, Facebook, Microsoft, and others – also said they would not support the rewritten version of Leahy’s bill.

It swiftly occurred to many observers that the scandal du jour in Washington, the Petraeus affair, featured FBI agents riffling through oceans of email, in a process that began with a rather pedestrian complaint about email harassment that probably would have remained beneath the agency’s notice, if not for the personal and political connections of the complainant.

Among the 22 agencies gaining warrantless access to electronic communications – potentially without notifying the targets of surveillance by up to a year – is the National Labor Relations Board, which has become a highly politicized tool for expanding labor union influence in the Obama era.  They wouldn’t dream of abusing these new powers, would they?  Especially given that there’s a lot more stored in the “cloud” these days than just copies of electronic mail?

The intense backlash from both Left and Right appears to have been heard clearly in Senator Leahy’s office, because after a few fitful attempts to defend the measure and/or claim that it was just an idea legislators were kicking around, the warrantless email search amendment was scuttled.  Some sort of legislation will still be presented next week.  Leahy’s staff will feel a few million nervous computer users peering over their shoulders as they write it.  History unfolds quickly on the Internet.