Senate Bill Rewrite: Feds Could Spy on E-Mail without a Warrant

Alas, the holiday season is upon us and instead of exemplifying gratitude or imagining sugar plums in our heads, Congress is set to shred our Fourth Amendment and dump the confetti in our stockings.

According to chief political correspondent for CNET, Declan McCullagh, a Senate proposal originally was going to protect e-mail privacy until law enforcement complained.

Those complaints prompted Democratic chairman of the Senate Judiciary Committee, Patrick Leahy, to rewrite the bill as a package of amendments, which essentially allows the authorization of warrantless access to American’s e-mails.

Note: These efforts to undermine our Constitutional rights are hardly surprising given that a federal judge recently ruled that police can place hidden surveillance cameras on private property without obtaining a warrant.

The amendments are a substitute for H.R. 2471, which was already approved by the House of Representatives and will be voted on in the Senate next Thursday.

Here are the revised highlights of the bill (the full text can be found in McCullagh’s article):

• Grants warrantless access to Americans’ electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.
• Permits state and local law enforcement to warrantlessly access Americans’ correspondence stored on systems not offered “to the public,” including university networks.
• Authorizes any law enforcement agency to access accounts without a warrant — or subsequent court review — if they claim “emergency” situations exist.
• Says providers “shall notify” law enforcement in advance of any plans to tell their customers that they’ve been the target of a warrant, order, or subpoena.
• Delays notification of customers whose accounts have been accessed from 3 days to “10 business days.” This notification can be postponed by up to 360 days.

What’s even more disturbing, besides the warrantless access to e-mail, is the fact the Securities and Exchange Commission (SEC) and the Federal Communications Commission (FCC) are allowed to gain access to private Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant.

Also, the FBI and Homeland Security would be allowed to gain access to Internet accounts without informing the owner or a judge.

As to be expected, there is opposition.

Markham Erickson, a Washington D.C. lawyer and founding partner of Holch & Erickson LLP, addressed his concern regarding the many agencies being granted overwhelming power.

“There is no good legal reason why federal regulatory agencies such as the NLRB, OSHA, SEC or FTC need to access customer information service providers with a mere subpoena. If those agencies feel they do not have the tools to do their jobs adequately, they should work with the appropriate authorizing committees to explore solutions. The Senate Judiciary committee is really not in a position to adequately make those determinations.”

Let’s hope before the Senate votes they read the 2010 6th Circuit of Appeals decision that requires the FBI and law enforcement in Kentucky, Michigan, Ohio, and Tennessee to obtain search warrants for e-mails.

“Given the fundamental similarities between e-mail and traditional forms of communication, it would defy common sense to afford e-mails lesser Fourth Amendment protection,” the court ruled in a 3-0 opinion (PDF) written by Judge Danny Boggs.

Edited by Madison Ruppert

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