An update to the 26-year-old Electronic Communications Privacy Act (ECPA) is due for a vote next week. But it seems that rather bringing it up to modern standards while guaranteeing protections for people’s digital communications, the rewrite actually expands the U.S. government’s surveillance powers dramatically.
The act in its current form is an update to the Federal Wiretap Act of 1968 and was written in a time before everyone had email, let alone use social networks or store files on the cloud. Despite a couple of amendments the act treats all kinds of messages differently and has a number of provisions that don’t necessarily apply to today’s world and leaves digital communications subject to very little privacy protections.
Back in September, Senator Patrick Leahy proposed a rewrite that would require federal, state, and local police to obtain a search warrant before accessing someone’s digital communications in any form. The Justice Department was quick to oppose saying that requiring a warrant to obtain stored e-mail could have an "adverse impact" on criminal investigations. Law enforcement groups reportedly asked Leahy to "reconsider acting" on and apparently he buckled under pressure.
Cnet says the revised bill would 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. All they need is to issue a subpoena or claim that an emergency situation exists.
The revised bill says providers "shall notify" law enforcement in advance of any plans to tell their customers that they’re being spied on, but even then they are required to wait 10 business days. Moreover, this notification can be postponed by up to 360 days.
The revised bill is scheduled for a vote next week but there's still some debate over how serious this proposal really is and if the draft obtained by Cnet represents the finalized version. Leahy was quick to deny the report on Twitter and said the whole point of the reform is to require search warrants. Meanwhile, Cnet’s Declan McCullagh is standing by his original story, suggesting Senator Leahy is just responding to public criticism.
@kashhill Alternate explanation: Sen. Leahy responded to public criticism. Senate Judiciary aides were definitely not saying that yesterday.— Declan McCullagh (@declanm) November 20, 2012