“What happens is, in the real world, agents sometimes have to do 30, 40, 50 page documents to get a warrant,” said Sessions, a former federal prosecutor. “It intimidates them and they just don’t try. Cases, particularly terrorism type cases, may never be followed up on simply because of that burden. So privacy is very real, it’s a very important issue. The email issues raise profound questions how it should be treated.”
Sessions indicated that individuals might forfeit some of their privacy rights by engaging in electronic communications.
“So if an email goes through a center where everybody knows it’s going to be preserved, then you reveal that to anybody who has access to that system,” Sessions said. “So you have a diminished expectation of privacy. But it is a new issue. It’s a tough one for us to wrestle with.”
Lee said the concerns are unfounded.
“A few government agencies have complained that some provisions of the bill might unduly hamper civil or criminal investigations,” he said. “That simply is not true. Routing information, customer names, session time records and other non-content information would still be available through subpoenas. Executive agencies could also compel service providers to preserve records pending issuance of a court order preventing a targeted user from simply deleting his or her email.”
Regardless, Democrats like Sen. Dianne Feinstein, of California, and Sen. Sheldon Whitehouse, of Rhode Island, joined Sessions in expressing some reservations on the impact of the law on various investigations and offered to work with Leahy and others to address the issue.
“I cannot tell you the overriding concern I have for privacy of Americans being eroded over and over again,” Leahy said, agreeing to work with committee members. “We have some law enforcement who follow things very carefully. Others will push the envelope like it’s going out of style. What I want to do is get to some kind of a uniform thing so Americans know what their privacy rights are.”
Passage of the measure was immediately embraced by supporters.
“With the vote today, Congress took a huge step toward finally updating ECPA to ensure emails and documents we store in the cloud receive the same Fourth Amendment Protections as postal mail and documents we store in desk drawers in our homes,” said Greg Nojeim, senior counsel for the Center for Democracy & Technology.
“The bipartisan vote today shows that the time to update ECPA is now,” he said. “Never before have we seen such wide support from Republicans, Democrats, tech companies of all sizes, advocates, and the public to pass this commonsense update to ensure Constitutional privacy protections for Americans’ most personal communications.”
Dan Holler, communications director for Heritage Action for America, a conservative interest group, said the Leahy-Lee bill “brings much needed parity to our nation’s communication privacy laws.”
“These reforms will help protect individual freedoms and ensure our laws encourage success in America’s technology and cloud computing industries,” he said.