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Leahy Weighs Privacy Bill Changes As Committee Vote Nears, Aide Says

Tuesday, November 27, 2012

Senate Judiciary Chairman Patrick Leahy (D-Vt.) remains committed to protecting Americans' privacy as he seeks to revise legislation dealing with the government's access to electronic communications, an aide told BNA Nov. 20, following a report saying that the senator had made significant concessions to law enforcement organizations.

Leahy's bill (H.R. 2471), which is scheduled to be taken up by the Senate Judiciary Committee Nov. 29, would modernize the 1986 Electronic Communications Privacy Act.

A key area of contention has been a provision in Leahy's original bill 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.

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

Leahy's office recently prepared a revised draft that differs substantially from the original legislation, calling for the government to have expanded surveillance powers, according to a Nov. 20 CNET News report. Under the draft, law enforcers would be given the ability to access Americans' email, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant, the report said.

'Committed' to Privacy Protections.

A Leahy aide confirmed to BNA that a manager's package is being developed to address concerns raised by “interested parties,” emphasizing that discussions are still ongoing and legislative details have not yet been finalized.

“Senator Leahy remains committed to protecting privacy and does not support warrantless searches of email,” the aide said.

The proposal described by CNET is one of multiple discussion drafts that have been floated by Leahy's office, according to a lobbyist who wished to remain anonymous.

“Clearly, some investigative agencies are interested in [getting expanded surveillance powers], but I don't think Leahy is seriously considering moving his bill in that direction,” the lobbyist told BNA Nov. 20. “That's obviously a non-starter for civil liberties groups.”

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

“We share the goal of balancing privacy concerns and law enforcement needs,” FBIAA President Konrad Motyka said in a statement emailed to BNA Nov. 20. “We plan to work with the Committee on issues such as the need for appropriate access to stored email content, and the risk associated with requirements related to providing notice to targets of investigations about the issuance of a warrant.”

By Alexei Alexis  

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