Grassley Aide Tells Leahy to ‘Step Back’ on ECPA Reform

Leahy’s Twitter handle @SenatorLeahy issued several tweets Tuesday aimed at distancing him from the allegations made in the CNET article. “Ideas from many sources always circulate b4 a markup 4 disc., but Sen.Leahy does NOT support such an exception for #ECPA search warrants,” said one tweet. A Leahy spokeswoman did not comment. The committee calendar said the markup will take place at 10 a.m. in Room 226 Dirksen.

Privacy groups said they were opposed to search warrant exemptions and described the legislative negotiations as ongoing. Allowing agencies to use subpoenas to search Americans’ emails is “not an acceptable answer,” said ACLU Legislative Counsel Chris Calabrese in a phone interview. “We believe the appropriate standard for accessing content is a warrant.”

Leahy’s manager’s amendment would be a “step backwards” if it resembles what was described in the CNET article, said Jim Dempsey, vice president-public policy at the Center for Democracy and Technology. “There is broad support outside the committee … for a simple, across-the-board warrant rule, subject to an emergency exception,” he told us in a phone interview. “Any effort to allow, for example, regulatory agencies to obtain access with a subpoena served on a service provider would be a step backwards,” he said. “If you are going to a service provider you should use a warrant, except in an emergency. … Any departure from that causes too much mischief and really hurts the whole business model of the Internet.”

Grassley and Leahy have been working since September to negotiate Leahy’s amendment to the House-passed HR-2471, which would let companies like Netflix share users’ viewing choices with their permission. Leahy’s amendment originally sought to require law enforcement agencies to obtain a warrant in order to request emails and other information held by ISPs and other Internet companies. The provision would also require the government to notify individuals when their email or personal information is disclosed by ISPs to law enforcement and provide them with a copy of the search warrant. Grassley’s spokeswoman said that neither the senator nor his staff had seen a copy of Leahy’s alleged legislative revisions.

In September, law enforcement agencies loudly protested Leahy’s amendment because they said it would increase the burdens of obtaining electronic communications necessary to catch criminals. Leahy subsequently delayed a markup vote of the bill until an agreement could be reached (CD Sept 21 p1). Since then members from the Federal Law Enforcement Officers Association met with Leahy’s legislative aides, said John Adler, the group’s national president.

Adler told us he’s not expecting the bill to advance in this Congress: “It’s too much of a hot issue in both chambers of Congress. … The core issue itself requires additional meaningful discussion and debate so we can move forward with a unified, substantive debate,” he said in a phone interview. Adler said Leahy’s legislative staff was receptive to the concerns of law enforcement agencies and offered the group a “long term commitment” to address the broader issues in the amendment.

Ultimately law enforcement agencies are seeking to strike a balance between consumer privacy rights and their need to pursue criminals who put the public at risk, Adler said. “If we are investigating a violent crime we will need quick access to [a suspect’s] information and expedited access to their content,” he said. In the digital age that means parsing emails, social media messages and other digital evidence that could help officers catch a suspect. But law enforcement officers aren’t looking for personal emails or content that isn’t relative to their investigations, Adler said. “We don’t have the time or the desire to delve into personal emails that have no relevance to violent crime.”