For A Brief, Shining Moment, Warrants Might Have Been Required (Update)

Senator Patrick Leahy was the hero of the great unwashed, those of us who exist in a world where email and internet are a part of our everyday life, and the idea that we weren’t feeding it straight into the belly of law enforcement was our boldest dream.  And then he wasn’t.

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.

Patrick Leahy, the influential Democratic chairman of the Senate Judiciary Committee, has dramatically reshaped his legislation in response to law enforcement concerns, according to three individuals who have been negotiating with Leahy’s staff over the changes. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail…

While those of us concerned about privacy were busy applauding, others concerned about privacy for the opposite reason were busy complaining about how this would make their lives so much more difficult.

But after law enforcement groups including the National District Attorneys’ Association and the National Sheriffs’ Association organizations objected to the legislation and asked him to “reconsider acting” on it, Leahy pushed back the vote and reworked the bill as a package of amendments to be offered next Thursday.

One person participating in Capitol Hill meetings on this topic told CNET that Justice Department officials have expressed their displeasure about Leahy’s original bill. The department is on record as opposing any such requirement: James Baker, the associate deputy attorney general, has publicly warned that requiring a warrant to obtain stored e-mail could have an “adverse impact” on criminal investigations.

Can you imagine?  The warrant clause having an “adverse impact” on criminal investigations?  Isn’t that precisely what it’s supposed to do?  If our foremost concern was facilitating criminal investigations, it would be in the government’s best interest to pass a law requiring us to “cc” the FBI on every email.  And why not? What do we have to hide?

For a very long time now, I’ve argued that the use of analogy to bootstrap old search and seizure law into the digital age was going to prove disastrous to privacy. Caselaw has been scattered at best, and the third party doctrine which made some sense in the olden days and makes no sense whatsoever as our most private communications invariably go through the hands of others, isn’t likely to be tossed despite the concerns of the empathetic Latina.

This was a huge, huge, opportunity to put the brakes on government intrusion into our private communications.  And now it’s gone.  It is unlikely that it will be on the table again, and everything from our direct twits to our private Facebook status will be open to view to the 22 federal agencies that will have unfettered access to everything we put online.

Not to be unduly dire, but this was the best chance we will ever have to limit warrantless government access to our digital lives, and it is now gone.  I thought you ought to know. Guide yourself accordingly, and as you enjoy the ease and availability of the cloud, remember who can read your every thought.

Or you could just “cc” the FBI on every email and make their life easier.  After all, the last thing any American wants is to adversely impact criminal investigations. 

Update: Sen. Rand Paul introduced a last minute amendment to restore the warrant requirement. This was what he had to say :

The Fourth Amendment guarantees that people should be secure in their persons, houses and papers against unreasonable searches and seizures.

Somewhere along the way, though, we became lazy and haphazard in our vigilance. We allowed Congress and the courts to diminish our Fourth Amendment protection, particularly when our papers were held by third parties.

I think most Americans would be shocked to know that the Fourth Amendment does not protect your records if they’re banking, Internet or Visa records. A warrant is required to read your snail mail and to tap your phone, but no warrant is required to look at your e-mail, text or your Internet searches. They can be read without a warrant. Why is a phone call more deserving of privacy protection than an e-mail?

This amendment would restore the Fourth Amendment protections to third-party records, and I recommend a yes vote.

The amendment failed.

4 comments on “For A Brief, Shining Moment, Warrants Might Have Been Required (Update)

  1. Bruce Coulson

    They could at least provide a little plastic castle, a diver with air bubbles, something; if we’re all going to be living in a fishbowl.

  2. Libertarian Advocate

    And so died the Republic, with little more than a whimper. Gotta wonder if those Vermont “liberals” who returned Leahy to office feel even a twinge of remorse.

  3. Marshall

    No surprises. Leahy is a former DA and has never flinched when asked to pass insane legislation making law enforcement’s job easier or imposing draconian penalties for relatively minor offenses.

    He’s not a bad guy and I agree with a lot of his politics, but his record on civil liberties and criminal justice legislation is exactly what you would expect of a former prosecutor and part of the reason he gets re-elected year after year as a democrat in a state that was, until recently, overwhelmingly republican. In fact, I believe he’s still the only Vermont democrat ever elected to the senate.

  4. David

    I’m pretty certain that, to add insult to injury, that if we DID cc the FBI on all of our emails, they’d arrest us for some sort of cyber-attack and/or spam.

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