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Unusual Team of Leahy and Lee Push Privacy Protection for Email

WASHINGTON – The Senate Judiciary Committee on Thursday advanced legislation to broaden privacy protections for email and other electronic communications, but several panel members expressed concerns about possible negative impact on law enforcement.

The bill attempts to update a 1986 law to “meet the challenges of the digital age,” according to Sen. Patrick Leahy (D-Vt.), the committee chairman and co-sponsor of the bill with Sen. Mike Lee (R-Utah).

“I think Americans are very concerned about unwarranted intrusions into our private lives in cyberspace,” Leahy said. “There’s no question if somebody wants to go into your house and go through your files and drawers they’re going to need a search warrant. But if you’ve got the same files in the cloud, you ought to have the same sense of privacy.”

The measure, sent to the Senate floor via voice vote, prohibits an electronic communications or remote communications provider -- like Gmail, Facebook, or Twitter -- from voluntarily disclosing the contents of customer emails or other communications.

It also requires government agencies to obtain a search warrant based on probable cause before gaining access to electronic communications, thus eliminating the so-called 180 day rule that some agencies maintain grants them warrantless access to older emails. Law enforcement agencies would also be required to notify within 10 days any person whose emails are being accessed.

Lee said the legislation is “essential to protecting Fourth Amendment rights and the interests of American citizens.”

“For centuries Americans corresponded primarily through the U.S. mail system,” he said. “It was well settled throughout that entire time that such private correspondence would be entitled to the full protection of the Fourth Amendment. Modern technology has now evolved to the point where third party storage and cloud computing are now the norm. So with countless people using Google, Yahoo and other remote services to host and coordinate electronic communications, it makes it necessary for us to update this bill.”

Proponents noted that the bill, known as the Electronic Communications Privacy Act, is a bipartisan effort – unusual for the 113th Congress – that carries the support of more than 100 privacy, civil liberties, civil rights, and Silicon Valley organizations.

“Everybody agrees we’ve got to do this,” Leahy said.

“We’re concerned about the Internal Revenue Service and other government agencies reading emails without getting a warrant,” Leahy said. “There are exceptions to the warrant requirement for emergency circumstances and national security but it also says the bill requires the government to promptly notify individuals that email content has been accessed.”

Despite receiving the endorsement of such divergent outfits as the American Civil Liberties Union and Americans for Tax Reform, the package has received more tepid response from law enforcement groups like the FBI Agents Association and the Securities and Exchange Commission, which fear the new restrictions could hinder vital investigations.

Several committee members, including Sen. Jeff Sessions (R-Ala.), cited a letter from SEC Chairwoman Mary Jo White, who cautioned that the Leahy-Lee bill could impede civil probes into issues like securities fraud since commission agents do not have warrant authority and can’t seek assistance from the Justice Department in obtaining one.

“It seems to me these concerns are very real,” Sessions said.

“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.