A Senate bill on cyber surveillance is set to go to vote on Thursday, and officials have been running in circles with privacy advocates nipping at their heels for the last two weeks.
The latest revision of the bill drafted by Sen. Patrick Leahy requires law officials to obtain a search warrant before reading private emails and other online correspondence, but it was only after receiving severe backlash that this final version came to be. That anger came from the previous revision's policy that would allow over 20 agencies to access Americans' email, Google Doc files, Facebook posts and Twitter direct messages without a warrant.
The entire push has been to reform a decades-old security act called the Electronic Communications Privacy Act (ECPA) of 1986, which allowed police to read emails with no warrant - only a subpoena.
Considering our last law on Internet privacy was created before the big names of Facebook and Twitter were even designed, our laws need an update. But it needs to be an update that protects the citizens and does not violate their privacy.
The bill has been a back-and-forth battle for the last few years. In 2010, the Obama administration withdrew its request for warrantless access to Yahoo! Mail accounts. Since then, the Senate Judiciary Committee has been working to update privacy laws, and Leahy even bragged about his bill's original enhanced privacy protections. But the last couple of months have been the most tumultuous time in those two years after law enforcement groups objected to the legislation and urged Leahy to reconsider the need for warrant-backed action.
After the controversial revision that spawned a petition urging Congress to stay out of private emails, the latest version now requires police to obtain a warrant. Again.
The anger over the warrantless provisions was perfectly justified, and it would be making a broad loophole for anyone to access virtually anything without consequence. The previous provision of the bill permitted state and local law enforcement to access information on systems not offered to the public, including university networks and business servers, using only a subpoena.
Business owners and university officials already have access to the information being shared across their networks - the provision gives law officials access to the same information with greater consequence, allowing them to obtain student emails and private information without a warrant.
The same restrictions should apply for cyber surveillance as ground security. A Dec. 2006 postal reform signing statement from then-President George W. Bush reiterated his power to check mail for reasonable searches or "in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection." The line for "reasonable searches" and privacy laws quickly becomes muddled when the same administration was found guilty for wiretapping without a warrant.
It seems a bit too timely that the law was getting quietly rewritten as the FBI was probing personal emails and the scandalous details of former CIA director David Petraeus' affair were coming to light. Would potential warrantless search lead to more consciousness or would the public just be subjected to week after week of stories of officials' emails and congressmen's Twitpics?
It's definitely time to revamp the old rules and regulations of the ECPA, but if that's the plan, then the old policy of warrantless search cannot continue. Leahy's bill has it right: update the privacy policy but without giving federal agencies blanket access.
Which revision of the bill is right comes down to who the people can - and should - trust more with their privacy and personal rights: their government officials or their law enforcement.
From all angles for now, it feels like a lose-lose.
Email: editorial@ubspectrum.com
