Popular E-Mail Privacy Bill May Get Unpopular, Privacy-Reducing Amendments In Senate

Image courtesy of Brad Clinesmith

This week’s episode of “Congress Tries To Cope With The 21st Century” is all about e-mail, and how much privacy yours gets.

The Senate Judiciary Committee is planning next week to run through the markup (amendment) process for a bill usually called ECPA, the Electronic Communications Privacy Act Amendments Act of 2015. And as Morning Consult explains, the bill itself is popular — but markup may well make a mess of everything.

The original Electronic Communications Privacy Act was passed in 1986, and it was a forward-thinking piece of legislation that made any transmission of electronic data by computer subject to the same wiretap rules as phone lines.

But the ubiquity, type, and scale of digital communication has changed a lot in the last 30 years. And when it comes to law enforcement, that means a new generation of battles between technologists and officials over privacy. So sure, it’s time for a clear, updated new rule to amend the old rule to bring it in line with 2016 and not 1986. So far, so good.

And so that’s what the ECPA update is. In short, the revised language prohibits service providers from handing over communications to the feds willy-nilly and requires the government to obtain a warrant before demanding communications be turned over. It also requires that the entity whose communications are being searched be given notice of the warrant, though it does contain provisions, exceptions, and delays that a court may grant if asked.

The legislation is basically as popular as anything gets in Washington, these days. The House passed their version, the Email Privacy Act, in April. That measure cleared the House in a whopping 419-0 vote (with 14 members not voting) — a level of unanimity extremely rare to see on Capitol Hill these days.

The Senate version, too, has broad bipartisan support, boasting 28 co-sponsors from both parties (and also one independent). But it hasn’t passed anything, yet. It first needs to get finalized by a committee — in this case, the Judiciary Committee — before it can go to a vote. And that’s where things get more complicated.

There are a number of proposed amendments to the bill that the committee will potentially vote to add on, and that’s where tech groups and civil liberties advocates are concerned.

One amendment, for example, would suspend the requirement for law enforcement first to get search warrant in counterterrorism cases — the FBI director could, basically, call up and demand to know. Another would create an exception to the need for a warrant if one person involved in the communication — the one who sent it, the one who received it, or the one who was meant to receive it — gave permission.

A representative for the CCIA, a tech trade group representing Google and Facebook among others, called that one “particularly problematic,” not only on its own merits but also because its presence was likely to weaken otherwise-broad support for the bill.

Advocates are, in general, wary of anything that would rock the boat at this late stage. “On a bill that passed 419-0, why are we talking about additional amendments when there’s such a broad basis of support?” an ACLU representative asked rhetorically in a C-SPAN interview.

A representative for TechFreedom concurred in an e-mail to Morning Consult, saying, “Senate efforts to poison the bill with unpalatable amendments show a real lack of respect for the unanimous vote in the House and all the years of work it took to get there.”

If the amendments make it into the bill, then the whole thing has to go back to the House (or to a conference committee between the House and Senate, really) all over again. If the text passes through as written, though, it can go mosey on up to the White House and become law.

So what’s going to happen? We’ll find out next week, theoretically; the Judiciary Committee has the ECPA on their markup calendar for June 9.

Tech, Civil Liberties Advocates Wary of Email Privacy Amendments [Morning Consult]

Want more consumer news? Visit our parent organization, Consumer Reports, for the latest on scams, recalls, and other consumer issues.