Once again a threat to the privacy of emails, and more generally the internet, has been averted. This may come as a surprise to the vast majority of the public, who likely did not even know a threat existed. Sen. Patrick Leahy (D – VT) has backed down from the Electronic Communications Privacy Act (ECPA) Amendments Act – a bill he wrote.
“ECPA, as amended, protects wire, oral, and electronic communications while those communications are being made, are in transit, and when they are stored on computers. The Act applies to email, telephone conversations, and data stored electronically.”
ECPA sounds great, until you hit the snag in the law. In 1986, there was no vision of storage in the magnitude that exist today nor the types of usage that is commonplace. Foremost of the failures of Congress to anticipate advances in technology is the stipulation that email – older than 180 days – is considered abandoned by law. Any law enforcement agency can request to obtain the email in writing (subpoena), without need of search warrant or other judicial oversight, so long as the request is stated to pertain to an investigation.
Some might think this not a big deal. But most forget that unlike your personal computer – which would require a search warrant to gain access to – service providers such as Gmail, Hotmail, AOL, et al. do not have the same protection under law. So any mail stored by these companies can be obtained with relative ease. This also extends to information on Facebook, Youtube, Google, Twitter, and all other forms of social media – without the 180 day stipulation.
Most importantly, the access that law enforcement can gain to all this material, does not require notification of the user (YOU) and includes information not in the public domain – diaries, calendars, memos, whatever.
Senator Leahy, initially proposed that he would draft legislation requiring law enforcement to use a probable-cause warrant to access all non-public internet communications such as email. That proposal was supported by the ACLU among other institutions and organizations. That was in September 2012.
On November 20, 2012 CNET revealed that Sen. Leahy had quietly revised the changes to ECPA. Changes that would now guarantee that
“…allow more than 22 agencies – including the Securities and Exchange Commission and the Federal Communications Commission – to access Americans’ e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge. “
The new revision would have allowed the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, the National Labor Relations Board, and the Mine Enforcement Safety and Health Review Commission to all have warrantless access to email and online interactions. Why the National Labor Relations Board might need access to your email or Twitter account is beyond our keen, but this short list does not include every government agency that would have had access regardless of need for it. A troubling thought, and a clear means by which to suppress free speech we conclude. We were not alone.
The outrage was swift and enormous. It was so severe a backlash that Sen. Leahy has now stated he will not support the Bill on Nov. 29th.
This now makes the 3rd attempt to allow government access and/or control over individual information stored or transmitted over the internet. The first attempt was with PIPA and SOPA.
“SOPA stands for Stop Online Piracy Act which is being proposed in the House of Representatives – PIPA being its equivalent in the Senate…In the most simple explanation, if there is a site X that provides say a movie illegally the owner of the movie can go to a court and use SOPA. That would force the ISP to close that site…the ISP may have to search into the logs of EVERY person to ever view that site – which is a major privacy issue. It may also force the ISP to shut down other sites on its servers that have nothing to do with the website that is in violation. This effectively violates others freedom of speech and ability to conduct commerce.”
Who sponsored SOPA in the Senate? Sen. Patrick Leahy (D-VT), and received $905,310 in donations from supporters of SOPA.
This was followed in February 2012 with the Internet Bill of Rights,
“Thus President Obama has announced a Bill of Rights for the Internet…Right now, if you have read this far, you can leave this site in a click…But the Government wants to protect you. Because you are not smart enough to use a different search engine. Because you are not smart enough to use a spam blockers, or any number of anti-malware and anti-spyware software out there. No, you need the Government to decide what can and cannot be done…Thus, somehow the Government, who just a month ago was going to recklessly shutdown websites and servers, and inflict unknown penalties on innocent observers, is now the shinning knight that will defend the Rights it was willing to sacrifice a month ago.”
With this 3rd try now defeated it would be wise for the media, individuals, and particularly the voters in Vermont, to keep an eye on Sen. Leahy and the government. To claim that SOPA/PIPA was an attempt of government overreach in January may have been conspiracy folly. To connect that action with a similar overreach attempt in February may have been eyebrow raising folly. But 3 tries in a single year? With the same players involved. Essentially using a bait and switch tactic.
Even the most jaded of partisan supporters should be wary at this point. The government appears to be intent on gaining control over the internet and whatever is on it. We feel we would be remiss to not state that the 1st & 4th Amendments, at least in conjunction with the internet, are under assault in our opinion. The government is hoping to catch the public sleeping, and woe be it to America if they finally do figure out how to pull the wool over our collective eyes.