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Leahy Unveils Revised Privacy Bill, Rejects Draft Surveillance Expansion

Wednesday, November 28, 2012

By Alexei Alexis  

In preparation for an upcoming committee vote, Senate Judiciary Chairman Patrick Leahy (D-Vt.) late Nov. 26 unveiled a manager's amendment to increase support for his proposal to modernize the 1986 Electronic Communications Privacy Act.

The legislation (H.R. 2471 substitute), which is scheduled to be taken up by the Senate Judiciary Committee Nov. 29, addresses what steps the government must take when asking electronic communications providers to turn over their customers' email messages and other private communications.

In an effort to appease the law enforcement community, Leahy has proposed a manager's amendment to extend the time allowed for the government to notify surveillance subjects, among other changes.

However, in a victory for privacy groups, the senator excluded controversial language from a draft manager's package that called for a significant expansion of the government's surveillance powers.

“I think we're largely happy with [the latest version],” Christopher Calabrese, legislative counsel for the American Civil Liberties Union, told BNA Nov. 27. “It does what we think is the most important thing--requiring a warrant anytime law enforcement is going after private, electronic communications, such as email. That's a great improvement to current law.”

Current Law 'Significantly' Outdated.

In a statement announcing the manager's amendment, Leahy said that ECPA is currently “significantly outdated and out-paced by rapid changes in technology and the changing mission of our law enforcement agencies.”

“I hope that all members of the Committee will join me in supporting the effort in Congress to update this law to protect Americans' privacy,” he said.

A key area of contention has been a provision from Leahy's original proposal that would require the government to obtain a search warrant based on a showing of probable cause when seeking access to electronic communications. The language is backed by privacy groups but has prompted objections from law enforcement organizations and committee Republicans.

An aide for Sen. Charles Grassley (R-Iowa), the committee's ranking member, said Nov. 27 that Leahy's manager's amendment was still being vetted.

“That process takes time, especially when the bill is written behind closed doors,” the aide said.

The FBI Agents Association (FBIAA) is among various law enforcement organizations that are urging the committee to proceed carefully on ECPA reform.

“The FBIAA remains concerned about the impacts of the proposed warrant and notice requirements on investigations and looks forward to working with Chairman Leahy and Ranking Member Grassley on these issues before any final changes to ECPA are adopted by Congress,” FBIAA President Konrad Motyka said in a statement emailed to BNA Nov. 27.

In September, Leahy postponed a vote on the proposal, saying that he was hoping to work with Republicans to develop bipartisan legislation.

The manager's amendment makes several changes to the notice provisions in the original bill to address the interests of law enforcement in protecting the integrity and confidentiality of ongoing investigations, according to a summary.

For example, the amendment revises Section 203 of the bill to extend the time period during which the government must notify an individual of the fact that the government has obtained the individual's electronic communications content from a third-party provider from three days to 10 business days after the government receives the information.

A recent draft would have given law enforcers the ability to access Americans' email, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant, according to a Nov. 20 CNET News report.


Leahy's manager's amendment is available at http://op.bna.com/der.nsf/r?Open=csaz-92fvyd.

A section-by-section summary of the manager's package is available at http://op.bna.com/der.nsf/r?Open=csaz-92fvyl.

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