Leahy denies supporting bill to allow warrantless email searches

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A Judiciary Committee aide confirmed to The Hill that Leahy "does not support broad carve-outs for warrantless email searches."

Leahy is pushing a bill that would revise the Electronic Communications Privacy Act (ECPA) of 1986. The Judiciary Committee is scheduled to vote on Leahy's measure next week.

The original version of Leahy's bill would have toughened the privacy protections of ECPA. 

Under current law, police only need an administrative subpoena, issued without a judge's approval, to read emails that have been opened or that are more than 180 days old. Police simply swear an email is relevant to an investigation, and then obtain a subpoena to force an Internet company to turn it over.

Leahy's revision would require police to obtain warrants to read private emails, regardless of how old they are or whether they were opened. 

Leahy, one of the original co-sponsors of ECPA, said in a statement last year that "updating this law to reflect the realities of our time is essential to ensuring that our federal privacy laws keep pace with new technologies and the new threats to our security.”

But according to CNET, Leahy agreed to weaken the bill in order to appease Republicans and law enforcement groups.

The site reported that a new version of his legislation exempted more than 22 federal agencies, including the Securities and Exchange Commission, the Federal Communications Commission, the Federal Trade Commission and the Federal Reserve, from the warrant requirement. The bill would give the FBI and the Homeland Security Department even more extensive powers in some circumstances, allowing them to gain full access to Internet accounts without notifying the owner or a judge, according to CNET.

The Judiciary Committee aide explained that discussions between lawmakers and interest groups on Leahy's bill are ongoing. The aide said it is possible that there will be "tweaks" to the bill before the committee's markup next week, but that major revisions are unlikely. 

The aide said it is possible that CNET was referring to a draft of the bill circulated by other lawmakers or interest groups, but that Leahy would not support any similar proposal.

"Ideas from many sources always circulate [before] a markup [for discussion], but Sen. Leahy does NOT support such an exception for #ECPA search warrants," Leahy's account tweeted.

The account tweeted that "the whole point of the Leahy reforms is [to] require search warrants [for government] to access email stored with [third] party service providers."

Chris Calabrese, a legislative counsel for the American Civil Liberties Union (ACLU) who has been following the issue, said he had seen the draft bill cited by CNET, but he said he was never under the impression that Leahy supported it.

"There was a lot of language floating around," Calabrese said. He added that the ACLU would not support any proposal that includes broad exceptions for civil enforcement.

"That undercuts the whole purpose of the bill," he said.

Calabrese noted that the proposal cited by CNET is similar to amendments proposed by Sen. Chuck Grassley (R-Iowa), the Judiciary Committee's top Republican.

Grassley expressed skepticism about creating new barriers for police investigations at a committee meeting in September.

"I have heard concerns about this amendment from state and local law enforcement officials. These officials are concerned with the impact this amendment may have on law enforcement operations," Grassley said. "Specifically, I have heard concerns about how this could impact cases where time is of the essence, namely kidnapping and child abduction cases." 

Grassley said he asked for input from the Justice Department, and officials told him the measure could "adversely affect the department’s activities."

—Updated at 3:59 p.m. to include a comment from the ACLU