Amendments to ECPA Update Bill Imperil Advancement; Privacy, Tech Groups Slam Changes
Negotiations between Senate offices over two contentious amendments to email privacy legislation (S-356), which is slated for a Thursday markup by the Senate Judiciary Committee, appear to have come to a standstill, possibly endangering the bill's advancement. Meanwhile, three dozen civil society, privacy, technology and industry organizations denounced the amendments -- one that would broaden FBI surveillance of Americans' online communications (see 1605260016) and another creating a warrant exception -- and said they would oppose an updated 30-year-old Electronic Communications Privacy Act (ECPA) if those amendments were included. They would be "real deal breakers," said Chris Calabrese, Center for Democracy and Technology vice president-policy, in an interview Tuesday.
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A spokeswoman for Sen. Mike Lee, R-Utah, who sponsored the ECPA update legislation, emailed Tuesday that he opposes the two amendments. When asked if it was fair to say that negotiations were at a stalemate, she replied, "It is." But a spokesman for Sen. John Cornyn, R-Texas, -- who offered both amendments, including one with Sen. Jeff Sessions, R-Ala., -- pointed to comments that the Texas Republican made to Politico Monday. He told the publication that he's "confident" his amendment would pass on a "strong bipartisan basis," basing his prediction on a similar vote on a similar provision that was considered in the Senate Intelligence Committee.
Lee, who introduced S-356, has said he supports passage of the House version (HR-699), which would require law enforcement agencies to get a warrant to access Americans' emails and other electronic communications, regardless of how long they've been stored. HR-699, which was negotiated between House lawmakers and privacy advocates, including Calabrese, was approved 419-0 in late April (see 1604270067).
Calabrese called the situation in the Senate "very difficult." The coalition, he said, made significant compromises in the House bill, keeping national security issues out of it altogether. The “11th hour changes [in the Senate] ... would really undercut the core protections of the bill," making it "very difficult for the coalition to do anything. Honestly, it’s surprising to us that a co-sponsor of the [Senate] bill would be bringing them forward." S-356 has 29 co-sponsors, including Cornyn.
Cornyn's amendment would expand the National Security Letter (NSL) statute and permit the FBI to seek even more personal information from people. For instance, through NSLs, which are administrative subpoenas, the FBI could demand electronic communications transactional records such as account numbers, login history, credit card and bank account information, types of services such as social media accounts and email providers, location data and internet browsing history, wrote Robyn Greene, policy counsel with New America's Open Technology Institute, in a blog post Tuesday.
Greene said the amendment would threaten people's privacy by allowing the FBI to "access and use that information to develop profiles of Americans’ habits and preferences, such as those concerning individuals’ medical and mental health concerns, political leanings and religious beliefs, reading interests, hobbies, and much more." In a Computer & Communications Industry Association blog post, Bijan Madhani, public policy and regulatory counsel, and Kacee Taylor, summer legal fellow, wrote that "Congress has historically never permitted such information to be obtained from providers without judicial oversight" and the recent trend has been to limit the power of NSLs. CCIA, CDT and New America's OTI are among 37 signatories -- which also include Facebook, Google and Yahoo -- to a letter sent Monday, urging senators to oppose it in the ECPA bill and also remove it from the Intelligence Authorization Act for Fiscal Year 2017.
The other amendment opposed by privacy groups is the so-called mandatory emergency amendment, offered by Cornyn and Sessions, which is also "enormously problematic," said Calabrese. When a law enforcement agency seeks an emergency request for electronic records or communications under ECPA, Calabrese said, the agency must lay out the facts that must meet a certain standard "and the process works very well." But the proposed amendment would make complying with emergency requests mandatory without any court oversight. So if law enforcement would come in and say, 'We have an emergency,' providers would have no choice but to turn over information and there’d be no process for evaluating whether in fact there is an emergency," he said.
Calabrese said he's unsure what to expect at the markup, but many members of the coalition have opposed both amendments. "If Senator Cornyn wants to insist on those amendments, the result is going to be [that] he's going to hold this bill up," he said.