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
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.”
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currently “significantly outdated and out-paced by rapid changes in technology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
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
“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
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.