New Legislation Could Allow Certain Agencies to Access Online Accounts Without Warrants

New Legislation Could Allow Certain Agencies to Access Online Accounts Without Warrants

November 20th, 2012
Sen. Patrick Leahy previously said his bill boosts Americans' e-mail privacy protections by "requiring that the government obtain a search warrant." That's no longer the case. (Credit: U.S. Senate)

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.

 

 
  • Grants warrantless access to Americans' electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.
  • Permits state and local law enforcement to warrantlessly access Americans' correspondence stored on systems not offered "to the public," including university networks.
  • Authorizes any law enforcement agency to access accounts without a warrant -- or subsequent court review -- if they claim "emergency" situations exist.
  • Says providers "shall notify" law enforcement in advance of any plans to tell their customers that they've been the target of a warrant, order, or subpoena. 
  • Delays notification of customers whose accounts have been accessed from 3 days to "10 business days." This notification can be postponed by up to 360 days.
 
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. 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.
 
An aide to the Senate Judiciary committee told CNET that because discussions with interested parties are ongoing, it would be premature to comment on the legislation.
 
Markham Erickson, a lawyer in Washington, D.C. who has followed the topic closely and said he was speaking for himself and not his corporate clients, expressed concerns about the alphabet soup of federal agencies that would be granted more power:
 
"There is no good legal reason why federal regulatory agencies such as the NLRB, OSHA, SEC or FTC need to access customer information service providers with a mere subpoena. If those agencies feel they do not have the tools to do their jobs adequately, they should work with the appropriate authorizing committees to explore solutions. The Senate Judiciary committee is really not in a position to adequately make those determinations. "
 
This is a bitter setback for Internet companies and a liberal-conservative-libertarian coalition, which had hoped to convince Congress to update the 1986 Electronic Communications Privacy Act to protect documents stored in the cloud. Leahy glued those changes onto an unrelated privacy-related bill supported by Netflix.
 
Judges already have been wrestling with how to apply the Fourth Amendment to an always-on, always-connected society. Earlier this year, the U.S. Supreme Court ruled that police needed a search warrant for GPS tracking of vehicles. Some courts have ruled that warrantless tracking of Americans' cell phones, another coalition concern, is unconstitutional.
 
The FBI and other law enforcement agencies already must obtain warrants for e-mail in Kentucky, Michigan, Ohio, and Tennessee, thanks to a ruling by the 6th Circuit Court of Appeals in 2010.
 

 

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