Leahy keeps tough protections in email privacy bill

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The latest version does not include those exceptions, and Leahy denied that he ever supported them. 

"We're very happy that all contents, emails and other communications are protected by a warrant," Chris Calabrese, a legislative counsel for the American Civil Liberties Union (ACLU), said. "The central tenet of the bill remains unchanged. We think that's a big win for privacy, and we of course hope it lasts through the markup."

Greg Nojeim, senior counsel for the Center for Democracy and Technology, said the bill is "significantly improved as compared to the draft that was circulating last week."

He noted that the latest version does not include a draft provision that would have limited the warrant requirement to "service providers to the public." 

The intent of the provision was to ensure that investigators could obtain business records using only a subpoena, but privacy advocates worried that the exception would create a broad loophole, allowing police to obtain student emails from a university without a warrant, for example.

Both Calabrese and Nojeim expressed disappointment that the new version of the bill allows law enforcement to request a renewable 180 delay for notifying the subjects of investigations that their emails have been seized. Current law allows police to request 90 day delays.

Under the Electronic Communications Privacy Act (ECPA) of 1986, 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Leahy argues that ECPA is out of date and that police should obtain warrants to read private emails, regardless of how old they are or whether they were opened. 

"I join the many privacy advocates, technology leaders, legal scholars and other stakeholders who support reforming ECPA to improve privacy rights in cyberspace," Leahy said in a statement on Monday. "I hope that all members of the committee will join me in supporting the effort in Congress to update this law to protect Americans’ privacy.”

But Sen. Chuck Grassley (R-Iowa), the Judiciary Committee's ranking Republican, expressed skepticism about creating new barriers for police investigations at a committee meeting in September.

A spokeswoman for Grassley said the senator is still reviewing the latest version of Leahy's bill.

"That process takes time, especially when the bill is written behind closed doors. When that process is complete, Senator Grassley will decide whether any amendments may be necessary," the spokeswoman said. "To be clear, Senator Grassley does not support an unauthorized dragnet of Internet and email surveillance by law enforcement and believes personal privacy protections need to be in place."

Leahy is offering his legislation as an amendment to H.R. 2471, a House bill that loosens video privacy requirements.