The Senate Judiciary Committee could finally move forward next week with an overhaul to the federal wiretap law governing digital privacy. Industry observers have long called for an update, but the controversy surrounding former CIA Director David Petraeus -- who resigned after law enforcement officials obtained emails that brought to light his affair with Paula Broadwell -- is lending that effort new momentum.
The Electronic Communications Privacy Act was passed in 1986 -- long before most people even had email accounts for anyone to intercept. That law contains some provisions that arguably made sense 26 years ago, but not today. Among others, ECPA allows law enforcement authorities to obtain emails older than six months with nothing more than a subpoena. To obtain a subpoena, prosecutors typically need to show only that the account might yield information that's relevant to an investigation -- a relatively easy standard to meet.
Currently, prosecutors only need to obtain a search warrant for email that's less than six months old. Search warrants are much harder to get than subpoenas, because judges aren't supposed to sign search warrants without probable cause to believe the material sought will yield evidence of a crime
Digital rights advocates say the government should need to obtain search warrants before accessing any emails, not just ones that are less than 180 days old. That type of provision would prevent federal officials from sifting through people's emails on nothing more than a hunch that the material would prove interesting.
Sen. Patrick Leahy (D-Vt.) said on his site yesterday that he plans to introduce revisions to ECPA that would require warrants across the board, not simply for emails less than 180 days old. Leahy made the statement shortly after Cnet reported that Leahy was planning to introduce ECPA amendments that would have made it easier for law enforcement to obtain digital communications without a warrant.
That report stunned observers, because it seemed to represent an about-face for Leahy. Cnet posted a copy of that version of the bill on its site, but Leahy now denies that he planned to push it. "The rumors about warrant exceptions being added to ECPA are incorrect," he stated. "The whole thrust of my bill is to remedy the erosion of the public’s privacy rights under the rapid advances of technology that we have seen since ECPA was first enacted thirty years ago."
For his part, Declan McCullagh, the Cnet reporter who brought the now-disavowed bill to light, speculates that Leahy backtracked under pressure from privacy advocates.
Regardless, the changes to ECPA that Leahy currently says he intends to advocate for are long overdue. Hopefully the amendment will make headway next week.