Privacy SOS

FBI surveillance amendment derails senate privacy bill

Thanks to FBI meddling, a straightforward electronic communications privacy reform with bipartisan support and barely any opposition is now stalled, and is dangerously close to dying this session.

The Electronic Communications Privacy Act (ECPA) became law in 1986, and hasn’t been updated since. The statute, which governs law enforcement access to electronic communications, contains an obsolete clause enabling government agencies to obtain stored communications without warrants as long as the records are over 180 days old. This provision made more sense when the law was passed, at a time when computer data storage was expensive and most people couldn’t afford to store anything in digital form for as long as 6 months. Today, when storage is cheap and many people have emails dating back a decade in their Gmail inboxes, the law makes no sense. For years now, advocates including the ACLU and major tech companies have been furiously lobbying to update the law. This year, the House finally passed an ECPA modernization bill, which if enacted would do away with the 6 month rule and instituting a warrant requirement for content across the board—no matter how long the information has been sitting in your Dropbox folder or Gmail account. After the unanimous House vote, I and others expected the reform to quickly move through the Senate and get a signature from President Obama. Finally!

Alas, that’s not what is happening.

Unfortunately, the FBI intervened, and now the bill has a poison pill in it. Republican Senator John Cornyn attached an amendment to the bill that would vastly expand the FBI’s power to use much-abused ‘National Security Letters,’ or NSLs, secret subpoenas. Email privacy supporters Senators Pat Leahy and Mike Lee have said they will pull the bill from consideration instead of allowing their efforts to be coopted by the FBI—which intends to broaden its surveillance authorities, instead of contract them, as the email privacy bill intends.

“Unfortunately, some Senators on the committee have decided late in the day that this bill should be a vehicle to move an unrelated and controversial expansion of the use of national security letters by the FBI,” Lee said. “Such an expansion would swallow up the protections this bill offers to the American people. While there are other concerns we had hoped to negotiate, the national security letter amendment is something I cannot in good conscience have attached to this bill.”

FBI Director James Comey has said getting the NSL power extended to internet information is his organization’s top legislative priority. 

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