The sorry affair of David Petraeus and a cast of thousands of emails, Tampa-area socialites, and jokes about the book title “All In” really showed the power of the FBI as part of the architecture of the government surveillance state, able to snoop on almost every private email communication of every citizen, often without a warrant. The legislation undergirding this policy hasn’t been updated since 1986, when email was downloaded from a server onto a physical computer. With most email now existing in the cloud, Congress has not updated the law to account for this, and as a result virtually all email can be investigated, often without a warrant. (In fact, after 180 days, all email can be searched, regardless of the format, though a warrant is required for data stored on a local hard drive.)
Congress is apparently responding to the Petraeus affair and the newfound concern about privacy in the digital age by writing an update to the law that dispenses with all pretense and just authorizes more warrantless email surveillance:
A Senate proposal touted as protecting Americans’ e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law.
CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail, is scheduled for next week.
Leahy’s rewritten 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. 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. (CNET obtained the revised draft from a source involved in the negotiations with Leahy.)
Basically, any law enforcement or intelligence-gathering agency would be allowed to access emails without a warrant or court review in the event of an “emergency,” which of course the agencies themselves define. Email customers whose communications have been accessed would not be notified for at least 10 and up to 360 business days.
The bill is HR 2471, an update to the Electronic Communications Privacy Act. The update originally would have demanded that federal agencies obtain a warrant backed by probable cause. So this represents a complete reversal, allowing for MORE warrantless snooping than the law currently allows.
The Justice Department opposed the original bill (the one that would have required a warrant) and hasn’t yet objected to this new one.
Applying Fourth Amendment rights to a digital society has increasingly led to the degradation of more privacy protections. This seems headed in the same direction.